<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Exchange Act of 1934
Date of report (Date of earliest event reported): January 21, 1997
IMCO Recycling Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-7170 75-2008280
(Commission File Number) (IRS Employer Identification No.)
5215 North O'Connor Blvd., Suite 940, Irving, Texas 75039
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (972)-869-6575
Not Applicable
(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
(a) Purchase of Stock of IMSAMET, Inc.
On January 21, 1997, IMCO Recycling Inc., a Delaware corporation (the
"Company"), acquired 100% of the issued and outstanding capital stock of
IMSAMET, Inc., a Delaware corporation ("IMSAMET"), in exchange for $58,000,000
in cash pursuant to the terms of a Stock Purchase Agreement (the "IMSAMET
Agreement") among the Company, EnviroSource, Inc., a Delaware corporation
("EnviroSource"), and IMSAMET. The amount and terms of such consideration were
determined following arm's-length negotiations between the Company and
EnviroSource.
IMSAMET, through its wholly-owned subsidiaries Imsamet of Utah, Inc. and
Imsamet of Idaho, Inc., operates aluminum processing facilities in Wendover,
Utah and Post Falls, Idaho, respectively. IMSAMET also owns a seventy percent
partnership interest in an aluminum processing facility in Goodyear, Arizona.
These three facilities process and recycle aluminum scrap and drosses. IMSAMET
also owns a fifty percent partnership interest in a salt recovery facility in
Wendover, Utah. The Company intends to continue operating the business and
assets of IMSAMET in a similar manner as they were operated prior to the the
Company's acquisition of IMSAMET.
The Company will account for its acquisition of IMSAMET as a purchase
transaction for financial accounting purposes.
The foregoing is a summary of certain terms of the IMSAMET Agreement and
is qualified in its entirety by reference to the full text of such agreement, a
copy of which has been filed herewith as an exhibit and is incorporated herein
by reference.
(b) New Credit Facilities
In order to fund the IMSAMET acquisition and to refinance certain
outstanding term and revolving indebtedness of the Company, on January 21,
1997, the Company established credit facilities (the "Credit Facilities") with
certain lenders, Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as arranger and syndication agent, and Texas Commerce Bank
National Association ("TCB") as administrative agent for the lenders, pursuant
to the terms and conditions of a Credit Agreement (the "Credit Agreement")
dated January 21, 1997. Under the Credit Agreement, the Company borrowed
$105,000,000 evidenced by seven-year term notes (the "Term Notes") to fund the
costs of the IMSAMET acquisition and to repay approximately $40,565,000 in term
indebtedness outstanding to The Mutual Life Insurance Company of New York, and
approximately $8,582,000 in term indebtedness outstanding to Texas Commerce
Bank National Association. In addition, the Company established a $20,000,000
revolving credit facility (including a $4 million letter of credit sub-
facility) and incurred $5,100,000 in debt
<PAGE>
thereunder to refinance outstanding indebtedness owed to TCB under a separate
outstanding working capital revolving facility. The new revolving credit
facility has a five year term pursuant to revolving credit notes executed by
the Company (the "Revolving Notes").
The unpaid portions of the indebtedness evidenced by the Term Note and the
Revolving Notes bear interest at the rate of, at the Company's option, either
(i) an applicable margin rate (the "Applicable Margin") plus the higher of (a)
the Federal Funds Rate plus 0.50% or (b) the Prime Rate (a "Base Rate Loan"),
or (ii) the Applicable Margin plus the applicable LIBOR Rate for the interest
period selected by the Company (a "LIBOR Loan"). The Applicable Margin will be
initially 0.50% for Base Rate Loans and 1.50% for LIBOR Loans. The Applicable
Margin will fluctuate over the term of the Term Notes and the Revolving Notes
based upon the ratio of the Company's consolidated total debt to consolidated
EBITDA ("Leverage Ratio"). In addition, the Company must pay a commitment fee
for unborrowed amounts available under the revolving facility, initially in the
amount of 0.375% of the nonutilized Revolving Credit Commitment, and after June
30, 1997, an amount based upon the Company's Leverage Ratio.
The Credit Facilities are secured by a first lien mortgage and security
interest on seven plant facilities owned by the Company, as well as security
interests in equipment, accounts receivable, inventories and certain
intellectual property and general intangibles. The Credit Facilities are
additionally secured by a pledge of the capital stock and equity interests of
substantially all of the Company's wholly-owned subsidiaries and certain joint
ventures in which the Company is directly or indirectly a joint venturer.
Additionally, substantially all of the Company's wholly-owned subsidiaries have
guaranteed the Company's obligations under the Credit Facilities.
The Credit Facilities contain covenants, representations and warranties by
the Company and its guarantor subsidiaries, including (i) limitations on the
ability to dispose of assets of the Company and subsidiaries or equity
interests of subsidiaries, (ii) limitations on acquisitions of unaffiliated
businesses other than certain scheduled specified transactions, and additional
unscheduled acquisitions not to exceed $25 million in the aggregate, (iii)
restrictions on liens and indebtedness permitted to be incurred or assumed by
the Company or its subsidiaries, other than as otherwise scheduled or permitted
under the Credit Agreement, and (iv) restrictions on investments by the Company
or its subsidiaries.
The Credit Agreement also contains limitations on the Company's ability to
declare and pay dividends in cash or property; however, if there is no default
under the Credit Agreement, then the Company is permitted to make cash dividend
payments in an aggregate amount of up to $3.5 million in 1997 and in 1998, $4.0
million in 1999 and in 2000, and $6.0 million in each fiscal year thereafter.
No assurances can be given as to any future levels of dividends, if any, which
may be declared or paid; decisions concerning the declaration and payment of
dividends are made by the Company's Board of Directors and will be based upon
the Company's level of earnings, cash flow, financial requirements, and
economic and business conditions then
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prevailing, as well as other relevant factors. The Credit Agreement further
contains provisions restricting the amount of capital expenditures that the
Company and its subsidiaries may make in any fiscal year ($38 million in 1997
and $20 million for each fiscal year thereafter). Finally, the agreement
requires the Company to comply with certain financial covenants and ratios,
including Leverage Ratio requirements, an interest coverage ratio, and a
covenant requiring that certain minimum net worth amounts be maintained.
ITEM 5. OTHER EVENTS.
On January 21, 1997, the Company acquired 100% of the issued and
outstanding capital stock of Rock Creek Aluminum, Inc., an Ohio corporation
("Rock Creek"), in accordance with the terms of a Stock Purchase Agreement (the
"Rock Creek Agreement") among the Company and the holders of 100% of the issued
and outstanding capital stock of Rock Creek (the "Shareholders"). Under the
terms of the Rock Creek Agreement, the Company issued, in private transactions,
618,137 shares (the "Shares") of the Company's common stock, par value $.10 per
share, to the Shareholders as the purchase price. The amount and terms of such
consideration were determined following arm's-length negotiations between the
Company and the Shareholders. Pursuant to the Rock Creek Agreement, a portion
of the Shares was placed into an escrow account for use in the event of any
claims by the Company against the Shareholders during the four-year period
following the closing of the purchase. The Company also has granted certain
registration rights to the Shareholders with respect to the Shares.
Rock Creek operates aluminum processing facilities in Elyria, Ohio, Rock
Creek, Ohio and Cleveland, Ohio that supply aluminum products, including
deoxidizers and slag conditioners, to the steel industry. The Company intends
to continue operating the business and assets of Rock Creek in a similar manner
as they were operated prior to the Company's acquisition of Rock Creek.
The Company will account for its acquisition of Rock Creek as a purchase
transaction for financial accounting purposes.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired:
At this time it is impracticable to provide the required consolidated
financial statements for IMSAMET, Inc.; therefore, the required financial
statements will be filed with the Commission no later than April 7, 1997.
(b) Pro forma Financial Information
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At this time it is impracticable to provide the required pro forma
financial information required pursuant to Article 11 of Regulation S-X;
therefore, the required financial information will be filed with the
Commission no later than April 7, 1997.
(c) Exhibits:
2.1 Stock Purchase Agreement by and among IMCO Recycling Inc.,
EnviroSource, Inc. and IMSAMET, Inc. dated November 26, 1996.
(In accordance with Item 601 of Regulation S-K, the copy of the
IMSAMET Agreement filed with the Securities and Exchange
Commission (the "Commission") does not include the schedules or
exhibits thereto. The Company agrees to furnish such
information supplementally to the Commission upon request.)
2.2 Amendment No. 1 to Stock Purchase Agreement by and among IMCO
Recycling Inc., EnviroSource, Inc. and IMSAMET, Inc. dated
January 21, 1997.
2.3 Credit Agreement by and among IMCO Recycling Inc., the
Subsidiary Guarantors named therein, the Lenders thereunder,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and Texas Commerce Bank National Association,
dated January 21, 1997. (In accordance with Item 601 of
Regulation S-K, the copy of the Credit Agreement filed with the
Commission does not include the schedules or exhibits thereto.
The Company agrees to furnish such information supplementally to
the Commission upon request.)
2.4 Security Agreement by and among IMCO Recycling Inc., the
Subsidiary Guarantors named therein and Texas Commerce Bank
National Association as Administrative Agent for the Lenders,
dated January 21, 1997.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IMCO RECYCLING INC.
By: /s/ PAUL V. DUFOUR
------------------------------------
Paul V. Dufour
Executive Vice President and
Chief Financial Officer
Date: February 4, 1997
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
STOCK PURCHASE AGREEMENT
BY AND AMONG
IMCO RECYCLING INC.
("PURCHASER"),
IMSAMET, INC.
("IMSAMET")
AND
ENVIROSOURCE, INC.
("SELLER")
DATED: NOVEMBER 26, 1996
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- --------------------------------------------------------------------------------
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TABLE OF CONTENTS[*]
PAGE
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ARTICLE I CERTAIN DEFINITIONS
"Accounting Firm" . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Accounts Receivable" . . . . . . . . . . . . . . . . . . . . . . . . 1
"Action". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Adjustment Items". . . . . . . . . . . . . . . . . . . . . . . . . 1
"Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Agreement Date". . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Announcement". . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Benefit Plan". . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Bid Balance Sheet" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Blue Sky Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"CERCLA". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"CERCLIS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Adjustment". . . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Balance Sheet" . . . . . . . . . . . . . . . . . . . . . . . 2
"Closing Date". . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Code". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Companies" and "Company" . . . . . . . . . . . . . . . . . . . . . . 2
"Company Benefit Plans" . . . . . . . . . . . . . . . . . . . . . . . 2
"Consent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Contract". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Deadline Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Disclosure Schedule" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Environmental Claims". . . . . . . . . . . . . . . . . . . . . . . . 3
"Environmental Law" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Exchange Act". . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Financial Statements". . . . . . . . . . . . . . . . . . . . . . . . 3
"FTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"GAAP". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Hazardous Substance" . . . . . . . . . . . . . . . . . . . . . . . . 3
"HSR Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"I/Arizona" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"I/Idaho" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"I/Utah". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"IMSAMET" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Income Taxes". . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Indemnified Person". . . . . . . . . . . . . . . . . . . . . . . . . 4
"Indemnifying Person" . . . . . . . . . . . . . . . . . . . . . . . . 4
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* This Table of Contents and the cover page are not a part of this Agreement.
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TABLE OF CONTENTS (CONT'D)
PAGE
----
"Initial Environmental Liability" . . . . . . . . . . . . . . . . . . 4
"Intellectual Property Rights". . . . . . . . . . . . . . . . . . . . 4
"IRS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Justice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Laws". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Losses". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Management". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Material Adverse Effect" . . . . . . . . . . . . . . . . . . . . . . 5
"Net Working Capital" . . . . . . . . . . . . . . . . . . . . . . . . 5
"Non-Environmental Basket". . . . . . . . . . . . . . . . . . . . . . 5
"Non-Environmental Claims". . . . . . . . . . . . . . . . . . . . . . 5
"Notice". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Objection Notice". . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Permits" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Permitted Lien". . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Provisional Closing Adjustment". . . . . . . . . . . . . . . . . . . 5
"Purchase and Sale" . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Purchase Price". . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Purchaser" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Purchaser Documents" . . . . . . . . . . . . . . . . . . . . . . . . 6
"Purchaser's Indemnified Persons" . . . . . . . . . . . . . . . . . . 6
"Real Property" . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Released". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"SALTS" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Securities Act". . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Section 5.01(m) Matter". . . . . . . . . . . . . . . . . . . . . . . 6
"Seller". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Seller Benefit Plans". . . . . . . . . . . . . . . . . . . . . . . . 6
"Seller Documents". . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Seller Income Tax Periods" . . . . . . . . . . . . . . . . . . . . . 6
"Seller's Indemnified Persons". . . . . . . . . . . . . . . . . . . . 6
"Shares". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Straddle Period Returns" . . . . . . . . . . . . . . . . . . . . . . 6
"Subsidiaries". . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Tangible Personal Property". . . . . . . . . . . . . . . . . . . . . 6
"Tax Returns" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Tax" or "Taxes". . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II PURCHASE AND SALE; ET AL.
2.01. Purchase and Sale (a). . . . . . . . . . . . . . . . . . . 7
(b) Purchase Price . . . . . . . . . . . . . . . . . . . . 7
2.02. Adjustment of the Purchase Price. . . . . . . . . . . . . . 7
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TABLE OF CONTENTS (CONT'D)
PAGE
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ARTICLE III REPRESENTATIONS AND WARRANTIES
3.01. Representations and Warranties of IMSAMET and Seller . . . . . 8
(a) Organization and Good Standing. . . . . . . . . . . . . . . 8
(b) Consents, Authorizations and Conflicts. . . . . . . . . . . 9
(c) Minute and Stock Transfer Books . . . . . . . . . . . . . 10
(d) Financial Statements and Liabilities. . . . . . . . . . . . 10
(e) Title, Condition and Nature of Tangible Assets. . . . . . 10
(f) Intellectual Property Rights. . . . . . . . . . . . . . . 11
(g) Litigation and Compliance . . . . . . . . . . . . . . . . 11
(h) Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 12
(i) Benefit Plans . . . . . . . . . . . . . . . . . . . . . . 12
(j) Employees and Labor Relations . . . . . . . . . . . . . . 13
(k) Environmental Matters . . . . . . . . . . . . . . . . . . 13
(l) Contracts . . . . . . . . . . . . . . . . . . . . . . . . 14
(m) Customers and Suppliers . . . . . . . . . . . . . . . . . . 14
(n) Absence of Certain Changes. . . . . . . . . . . . . . . . 14
(o) Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . 15
(p) Capitalization and Title to Shares. . . . . . . . . . . . 15
(q) Bank Accounts . . . . . . . . . . . . . . . . . . . . . . 15
(r) Accounts Receivable . . . . . . . . . . . . . . . . . . . 16
(s) Insurance . . . . . . . . . . . . . . . . . . . . . . . . 16
(t) Inventory . . . . . . . . . . . . . . . . . . . . . . . . 16
3.02. Representations and Warranties of Purchaser. . . . . . . . . 16
(a) Organization and Good Standing. . . . . . . . . . . . . . 16
(b) Consents, Authorizations and Conflicts. . . . . . . . . . 16
(c) Financing . . . . . . . . . . . . . . . . . . . . . . . . 17
3.03. To the Best Knowledge, etc. . . . . . . . . . . . . . . . . 17
3.04. No Other Representations and Warranties by IMSAMET and
Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IV CONDUCT AND TRANSACTIONS PRIOR TO CLOSING; AFTER CLOSING
4.01. Access to Records and Properties of the Companies. . . . . . 18
4.02. Operation of IMSAMET . . . . . . . . . . . . . . . . . . . . 18
4.03. Consents and Notices . . . . . . . . . . . . . . . . . . . . 19
4.04. HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.05. Best Efforts to Satisfy Conditions . . . . . . . . . . . . . 20
4.06. Indebtedness to Seller . . . . . . . . . . . . . . . . . . . 20
4.07. Transfer Restrictions . . . . . . . . . . . . . . . . . . . 20
4.08. Confidential Information . . . . . . . . . . . . . . . . . . 20
4.09. Tax Returns and Payments . . . . . . . . . . . . . . . . . . 21
4.10. Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . 22
4.11. Competing Offers . . . . . . . . . . . . . . . . . . . . . . 22
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<PAGE>
TABLE OF CONTENTS (CONT'D)
PAGE
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ARTICLE V CONDITIONS OF CLOSING
5.01. Conditions to Obligations of Purchaser. . . . . . . . . . . . . 22
(a) Representations and Warranties; Performance of Obligations. 22
(b) Consents and Notices. . . . . . . . . . . . . . . . . . . . 23
(c) Legal Restraints. . . . . . . . . . . . . . . . . . . . . . . 23
(d) Release of Guarantees . . . . . . . . . . . . . . . . . . . 23
(e) Share Certificates. . . . . . . . . . . . . . . . . . . . . 23
(f) Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . 23
(g) Resignations. . . . . . . . . . . . . . . . . . . . . . . . 24
(h) Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . 24
(i) Minute Books. . . . . . . . . . . . . . . . . . . . . . . . 24
(j) Bank Signature Cards. . . . . . . . . . . . . . . . . . . . 24
(k) Corporate Documents . . . . . . . . . . . . . . . . . . . . 24
(l) Title Policy. . . . . . . . . . . . . . . . . . . . . . . . 24
(m) Environmental Report. . . . . . . . . . . . . . . . . . . . 24
(n) Updated Property Schedules. . . . . . . . . . . . . . . . . 25
(o) Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . 25
5.02. Conditions to Obligations of Seller. . . . . . . . . . . . . . 25
(a) Representations and Warranties; Performance of
Obligations. . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Consents and Notices. . . . . . . . . . . . . . . . . . . . 25
(c) Legal Restraints. . . . . . . . . . . . . . . . . . . . . . 26
(d) Release of Guarantees . . . . . . . . . . . . . . . . . . . 26
(e) Closing Date Purchase Price . . . . . . . . . . . . . . . . 26
(f) Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(g) Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . 26
(h) Corporate Documents . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VI CLOSING DATE AND TERMINATION
6.01. Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.02. Termination of Agreement . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII INDEMNIFICATION
7.01. By Seller. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.02. By Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.03. "Losses" Defined . . . . . . . . . . . . . . . . . . . . . . . 30
7.04. Notice of Claims . . . . . . . . . . . . . . . . . . . . . . . 30
7.05. Survival of Provisions . . . . . . . . . . . . . . . . . . . . 30
7.06. No Punitive Damages. . . . . . . . . . . . . . . . . . . . . . 31
7.07. Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE VIII MISCELLANEOUS
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TABLE OF CONTENTS (CONT'D)
PAGE
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8.01. Further Actions. . . . . . . . . . . . . . . . . . . . . . . . 31
8.02. Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.03. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.04. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . 32
8.05. Descriptive Headings; References . . . . . . . . . . . . . . . 32
8.06. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.07. Governing Law and Forum. . . . . . . . . . . . . . . . . . . . 33
8.08. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.09. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.10. Waivers and Amendments . . . . . . . . . . . . . . . . . . . . 34
8.11. Third Party Rights . . . . . . . . . . . . . . . . . . . . . . 34
8.12. Illegalities . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.13. Nature of the Transaction. . . . . . . . . . . . . . . . . . . 35
8.14. Public Announcements . . . . . . . . . . . . . . . . . . . . . 35
8.15. Gender and Plural Terms. . . . . . . . . . . . . . . . . . . . 35
8.16. License of Logo. . . . . . . . . . . . . . . . . . . . . . . . 35
8.17. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 36
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
EXHIBIT A -- Bid Balance Sheet
EXHIBIT B -- Form of Opinion of Counsel to IMSAMET and Seller
EXHIBIT C -- Form of Opinion of Counsel to Purchaser
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THIS STOCK PURCHASE AGREEMENT, dated November 26, 1996, is by and among (1)
IMCO Recycling Inc., a Delaware corporation ("PURCHASER") whose principal
offices are located at 5215 N. O'Connor Boulevard, Suite 940, Irving, Texas
75039, (2) IMSAMET, Inc., a Delaware corporation ("IMSAMET") whose principal
offices are located at 505 East Plaza Circle, Suite D, Litchfield Park, Arizona
85340, and (3) EnviroSource, Inc., a Delaware corporation ("SELLER") whose
principal offices are located at Horsham Business Center, 1155 Business Center
Drive, Horsham, Pennsylvania 19044-3454.
BACKGROUND
IMSAMET has issued and outstanding 1,000 shares (the "SHARES") of Common
Stock, par value $1.00 per share, all of which are owned by Seller. IMSAMET
owns all the outstanding capital stock of Imsamet of Idaho, Inc., a Delaware
corporation and Imsamet of Utah, Inc., a Delaware corporation, and a 70%
partnership interest in Imsamet of Arizona, an Arizona partnership and a 50%
partnership interest in Solar Aluminum Technology Services, a Utah partnership.
Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller, the Shares on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived and
the representations and warranties, conditions, covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
In this Agreement, the term:
"ACCOUNTING FIRM" has the meaning set forth in Section 2.02(c).
"ACCOUNTS RECEIVABLE" has the meaning set forth in Section 3.01(r).
"ACTION" has the meaning set forth in Section 5.01(c).
"ADJUSTMENT ITEMS" has the meaning set forth in Section 2.02(a).
"AGREEMENT" means this Agreement, as the same may be modified,
amended, supplemented and/or restated from time to time.
"AGREEMENT DATE" means the date of this Agreement, as set forth in the
preamble of this Agreement.
"ANNOUNCEMENT" means and includes any announcement to the public or to
the trade, the employees or any customer or supplier of the Companies with
respect to this Agreement or any of the transactions contemplated hereby.
"BENEFIT PLAN" means and includes any pension benefit plan (as defined
in Section 3(2) of ERISA), welfare benefit plan (as defined in Section 3(1) of
ERISA), bonus, stock purchase, stock ownership, stock option, deferred
compensation, incentive,
<PAGE>
severance, termination or other compensation plan or arrangement, or other
employee fringe benefit plan.
"BID BALANCE SHEET" means the consolidated balance sheet of IMSAMET in
the form attached hereto as EXHIBIT A, the first column of which (headed "Actual
as of 9/30/96") is the consolidated balance sheet of IMSAMET as of September 30,
1996 which is included as part of the Financial Statements.
"BLUE SKY LAWS" means and includes the securities or blue sky laws of
any state of the United States.
"CERCLA" means the federal Comprehensive Environmental Response,
Compensation and Liability Act, as the same may have been or may from time to
time be amended.
"CERCLIS" means the federal Comprehensive Environmental Response,
Compensation and Liability Information System.
"CLOSING" means the closing and consummation of the Purchase and Sale
and the other transactions contemplated by this Agreement.
"CLOSING ADJUSTMENT" has the meaning set forth in Section 2.02(a).
"CLOSING BALANCE SHEET" means the unaudited consolidated balance sheet
of IMSAMET as of the close of business on the day before the Closing Date,
prepared by consistently applying the accounting practices applied in preparing
the consolidated balance sheet of IMSAMET as of September 30, 1996 which is
included as part of the Financial Statements (notwithstanding whether such
accounting practices are fully in accordance with GAAP) and certified and signed
by Seller's principal financial officer as provided in Section 2.02(a).
"CLOSING DATE" means such date mutually agreed upon by Purchaser and
Seller that is within five business days after the first date upon which all
Consents and Notices (including such as are required under the HSR Act), which
at the time remain conditions to the obligations of the parties to effect the
Purchase and Sale shall have been obtained or given.
"CODE" means the Internal Revenue Code of 1986, as the same may have
been or may from time to time be amended.
"COMPANIES" means IMSAMET and its Subsidiaries, collectively; and
"COMPANY" means each or any of the Companies, as the context may require or
permit.
"COMPANY BENEFIT PLAN" has the meaning set forth in Section 3.01(i).
"CONSENT" means and includes any governmental, judicial or private
party consent, approval, permission, authorization, waiver or exemption.
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"CONTRACT" means and includes any contract, agreement, instrument,
undertaking, commitment or arrangement, of any kind or description whatsoever to
which IMSAMET, any of its Subsidiaries or SALTS is a party or by which any
property, assets, capital stock or partnership interest (as the case may be) of
IMSAMET, any of its Subsidiaries or SALTS is subject or bound.
"DEADLINE DATE" has the meaning set forth in Section 6.02.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule, comprising the
Schedules referred to in Section 3.01 hereof, delivered by IMSAMET and Seller to
Purchaser contemporaneously with this Agreement (or prior thereto), as the same
may be updated as provided in Section 5.01(a).
"ENVIRONMENTAL CLAIMS" has the meaning set forth in Section
7.01(b)(3).
"ENVIRONMENTAL LAW" means and includes any federal, state, local or
foreign Law of, any Permit from, or any consent decree or agreement with, any
federal, state, regional, special district, local or foreign governmental
authority regulating, relating to or imposing liability or standards of conduct
relating to environmental matters or the protection of human health or the
environment, including, without limitation, (as the same may have been or may be
amended from time to time) the federal Clean Air Act, the federal Clean Water
Act, the federal Resource Conservation and Recovery Act, CERCLA, any so-called
"Superfund" or "Superlien" Law, the Occupational Safety and Health Act, the
federal Toxic Substances Control Act and any similar state, local or foreign
Law.
"ENVIRONMENTAL CLAIMS" has the meaning set forth in Section
7.01(b)(2).
"ENVIRONMENTAL REPORT" has the meaning set forth in Section 5.01(m).
"ERISA" means the federal Employee Retirement Income Security Act of
1974, as the same may have been or may from time to time be amended.
"EXCHANGE ACT" means the federal Securities Exchange Act of 1934, as
the same may have been or may from time to time be amended.
"FINANCIAL STATEMENTS" means and includes the financial statements of
the Companies included in SCHEDULE 3.01(d).
"FTC" means the U.S. Federal Trade Commission.
"GAAP" means generally accepted accounting principles in the United
States.
"HAZARDOUS SUBSTANCE" means and includes any hazardous, toxic or
polluting contaminant, substance or waste, including, without limitation, any
solid waste, toxic substance, hazardous substance, hazardous material, hazardous
chemical, pollutant or hazardous or acutely hazardous waste defined or
qualifying as such in (or for the purposes of) any Environmental Law, and shall
also include (but not be limited to) petroleum
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(including, without limitation, crude oil and any fraction thereof), any
radioactive material (including, without limitation, any source and special
nuclear by-product material as defined at 42 U.S.C. Section 2011 ET SEQ., as
amended or hereafter amended), polychlorinated biphenyls (PCBs) and asbestos
in any form or condition.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, and the rules and regulations promulgated thereunder, as the same may have
been or may be amended from time to time.
"I/ARIZONA" means Imsamet of Arizona, an Arizona partnership.
"I/IDAHO" means Imsamet of Idaho, Inc., a Delaware corporation.
"I/UTAH" means Imsamet of Utah, Inc., a Delaware corporation.
"IMS" means International Mill Service, Inc., a Pennsylvania
corporation and wholly-owned subsidiary of Seller.
"IMSAMET" means IMSAMET, Inc., a Delaware corporation.
"IMSAMET LOGO" has the meaning set forth in Section 8.16.
"INCOME TAXES" means all U.S. federal income taxes and all taxes
imposed by states, territories and possessions of the United States and
political subdivisions thereof which are based on or measured by net income or
net profits together with all interest, penalties and additions imposed with
respect to such taxes.
"INDEMNIFIED PERSON" has the meaning set forth in Section 7.04 hereof.
"INDEMNIFYING PERSON" has the meaning set forth in Section 7.04
hereof.
"INITIAL ENVIRONMENTAL LIABILITY" has the meaning set forth in Section
3.01(k).
"INTELLECTUAL PROPERTY RIGHTS" means and includes all patents, patent
applications, trademarks, trademark registrations, applications for trademark
registrations, trade names, brand names, service marks, trade dress rights,
logos and registered copyrights.
"IRS" means the U.S. Internal Revenue Service.
"JUSTICE" means the U.S. Department of Justice.
"LAWS" means and includes all federal, state, regional, special
district, local and foreign laws, statutes, ordinances, codes, judgments,
orders, decrees, directives, rules and regulations of any governmental
authority, court or arbitrator.
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<PAGE>
"LIENS" means and includes all liens, security interests, mortgages,
pledges, covenants, easements and similar encumbrances and defects in title.
"LOSSES" has the meaning set forth in Section 7.03 hereof.
"MANAGEMENT" means, in relation to any substance, the treatment,
storage, recycling, disposal, generation, transportation, handling or Release
thereof.
"MATERIAL ADVERSE EFFECT" means a condition or event which has had, or
if it should come about is reasonably expected to have, a material adverse
effect on the business, financial condition, earnings or prospects of the
Companies taken as a whole as compared to September 30, 1996.
"NET WORKING CAPITAL" means current assets minus current liabilities
of IMSAMET on a consolidated basis. Net Working Capital may be a negative
amount.
"NON-ENVIRONMENTAL BASKET" has the meaning set forth in Section
7.01(b)(3).
"NON-ENVIRONMENTAL CLAIMS" has the meaning set forth in Section
7.01(b)(3).
"NOTICE" means any notice, announcement, communication or other
advice.
"OBJECTION NOTICE" has the meaning set forth in Section 2.02(c).
"PERMITS" means and includes all governmental licenses, permits,
rights, privileges, registrations, required reports, franchises, authorizations
and other consents which are required under any applicable Law to own and/or
operate the business of any of the Companies.
"PERMITTED LIEN" means and includes: (i) Liens for taxes not yet due
and payable; (ii) Liens imposed by law, such as banker's, warehousemen's,
mechanic's and materialmen's liens, and other similar statutory or common law
liens arising in the ordinary course of business; (iii) Liens arising out of
pledges, bonds or deposits under worker's compensation laws, unemployment
insurance, old age pension or other social security or retirement benefits or
similar legislation and deposits securing obligations for self-insurance
arrangements in connection with any of the foregoing; (iv) easements, rights of
way, building restrictions, minor defects or irregularities in title and such
other encumbrances or charges against property (real, personal or mixed) as are
of a nature that do not in a materially adverse way affect the marketability of
the same or interfere with the use thereof in the ordinary course of business as
presently conducted; (v) Liens of landlords arising under leases as to which a
Company is lessee and which are disclosed in SCHEDULE 3.01(l); (vi) Liens
securing indebtedness disclosed or reflected in the Financial Statements; and
(vii) other Liens created in connection with senior bank financing provided to
Seller and its subsidiaries which will be released and discharged in full on or
prior to the Closing Date.
"PROVISIONAL CLOSING ADJUSTMENT" has the meaning set forth in Section
2.02(b).
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"PURCHASE AND SALE" means the transactions provided for in Section
2.01.
"PURCHASE PRICE" has the meaning set forth in Section 2.01(b).
"PURCHASER" means IMCO Recycling Inc., a Delaware corporation, and its
successors and permitted assigns.
"PURCHASER DOCUMENTS" means and includes this Agreement and the other
agreements, instruments, certificates or other documents executed and delivered
by Purchaser or any affiliate thereof in connection with this Agreement and/or
the Closing.
"PURCHASER'S INDEMNIFIED PERSONS" means and includes Purchaser, its
directors, officers, employees and agents, the Companies and SALTS and each of
their respective directors, officers, employees and agents serving as such after
the Closing at the request of Purchaser.
"REAL PROPERTY" has the meaning set forth in Section 3.01(e).
"RELEASED" means, in relation to any substances, released, spilled,
leaked, discharged, disposed of, pumped, poured, emitted, emptied, injected,
leached, dumped or allowed to escape.
"SALTS" means Solar Aluminum Technology Services, a Utah partnership.
"SECURITIES ACT" means the Securities Act of 1933, as the same may
have been or may from time to time be amended.
"SECTION 5.01(m) MATTER" has the meaning set forth in Section 5.01(m).
"SELLER" means EnviroSource, Inc., a Delaware corporation, and its
successors and permitted assigns.
"SELLER BENEFIT PLANS" has the meaning set forth in Section 3.01(i).
"SELLER DOCUMENTS" means this Agreement, and the other agreements,
instruments, certificates or other documents executed and delivered by Seller,
IMSAMET or any other Company in connection with this Agreement and/or the
Closing.
"SELLER INCOME TAX PERIODS" has the meaning set forth in Section
4.09(a).
"SELLER'S INDEMNIFIED PERSONS" means and includes Seller and the
directors, officers, employees and agents of IMSAMET and its Subsidiaries who
served as such for any period while Seller owned IMSAMET.
"SHARES" means the shares of IMSAMET's stock described in the
"Background" section of this Agreement.
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"STRADDLE PERIOD RETURNS" means all Tax Returns of the Companies for
taxable periods beginning before and ending after the Closing Date.
"SUBSIDIARIES" means I/Arizona, I/Idaho, and I/Utah, collectively.
"TANGIBLE PERSONAL PROPERTY" has the meaning set forth in Section
3.01(e).
"TAX RETURNS" means and includes all returns (including information
returns) and reports with respect to Taxes, including all schedules and other
information and materials filed, submitted or required to be filed or submitted
therewith.
"TAX" or "TAXES" means all taxes, charges, levies or other like
assessments, including without limitation all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, capital,
payroll, employment, excise, stamp, property or other taxes, together with any
interest and any penalties, additions to tax or additional amounts imposed by
any governmental authority.
ARTICLE II
PURCHASE AND SALE; ET AL.
2.01. PURCHASE AND SALE. (a) Subject to the terms and conditions of
this Agreement, on the Closing Date, Seller shall sell, transfer, assign, grant,
convey and set over to Purchaser, and its successors and assigns forever, and
Purchaser shall purchase and receive from Seller, free and clear of any and all
Liens, all of Seller's right, title and interest in, to and under the Shares.
(b) PURCHASE PRICE. In consideration of Seller's sale of the Shares
to Purchaser as aforesaid, Purchaser shall pay to Seller Fifty-Eight Million
United States Dollars (US$58,000,000) in cash (the "PURCHASE PRICE"), by a wire
transfer of immediately available funds to an account in the United States
designated in writing by Seller.
2.02. ADJUSTMENT OF THE PURCHASE PRICE. (a) After the Closing,
Purchaser and Seller shall cooperate in preparing the Closing Balance Sheet as
promptly as practicable, but not later than 30 days, after the Closing.
Representatives of both Purchaser and Seller shall be entitled to observe and
participate in the preparation of the Closing Balance Sheet. Such rights of
observation and participation shall specifically include the right of Seller and
its representatives to have access to the facilities and records of the
Companies and SALTS where the Companies' and SALTS's records are located during
normal business hours (or as the parties may otherwise agree). When the Closing
Balance Sheet has been completed to Seller's satisfaction, it shall be certified
and signed by Seller's principal financial officer and delivered to Purchaser.
The sum of the amounts of (1) "Property, plant and equipment, at cost", (2)
"Investment in SALTS" and (3) Net Working Capital (collectively, the "ADJUSTMENT
ITEMS") on the Closing Balance Sheet shall be compared to the sum of the amounts
of the Adjustment Items on the Bid Balance Sheet (I.E., $35,319,000). If the
sum of such amounts on the Closing Balance Sheet is greater than the sum of such
amounts on the Bid Balance Sheet, then Purchaser shall pay the amount of the
difference to Seller; if the sum of such amounts on the Closing Balance Sheet is
less
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than the sum of such amounts on the Bid Balance Sheet, then Seller shall pay
the amount of the difference to Purchaser (in either case, the "CLOSING
ADJUSTMENT").
(b) The Closing Adjustment shall be payable in the manner provided in
Section 2.01(b) within 15 days after the delivery of the Closing Balance Sheet
to Purchaser. If no Objection Notice is delivered as set forth in Section
2.02(c) below, then the Closing Adjustment calculated based on the Closing
Balance Sheet shall be final, binding and conclusive upon the parties hereto.
In the event that an Objection Notice is so delivered, then Seller shall
nevertheless pay to Purchaser any amount shown to be so payable as the Closing
Adjustment calculated based on the Closing Balance Sheet and/or Purchaser shall
pay to Seller any amount shown to be so payable in the Objection Notice (either
such payment, the "PROVISIONAL CLOSING ADJUSTMENT"). Such payments shall be
made in the manner provided in Section 2.01(b) within 15 days after the delivery
of the Closing Balance Sheet to Purchaser. The amount of any Adjustment Item
not objected to in an Objection Notice delivered as provided in the following
Section 2.02(c) shall be final, binding and conclusive upon the parties hereto.
(c) Purchaser may, within 15 days after the delivery of the Closing
Balance Sheet, give Seller a notice (an "OBJECTION NOTICE"): (i) stating that
Purchaser in good faith objects to the Closing Balance Sheet and/or the proposed
Closing Adjustment, and (ii) setting forth in full detail Purchaser's
determination of the Closing Adjustment and the reasons therefor. Purchaser and
Seller shall thereafter negotiate in good faith in order to agree upon the
amount of the Closing Adjustment. If Purchaser and Seller fail to so agree
within 30 days after the delivery of any Objection Notice, then either such
party may submit the determination of the amount of the Closing Adjustment to
Ernst & Young LLP (or, if Ernst & Young LLP shall fail or refuse to accept such
assignment, then another accounting firm selected by Ernst & Young LLP) (as the
case may be, the "ACCOUNTING FIRM"). The Accounting Firm shall be jointly
retained by Seller and Purchaser, and all the fees, costs and expenses of the
Accounting Firm shall be borne one-half by Seller and one-half by Purchaser.
After affording each of Seller and Purchaser and their respective accountants
and other representatives the opportunity to present their respective positions
as to the amount of the Closing Adjustment (which opportunity shall not extend
for more than 30 days from the date the Accounting Firm is retained), the
Accounting Firm shall determine the amount of the Closing Adjustment; PROVIDED
that the amount so determined shall be: (i) equal to the amount thereof as set
forth in or based on either (x) the Closing Balance Sheet or (y) the relevant
Objection Notice, or (ii) an amount between such amounts.
(d) The determination of the amount of the Closing Adjustment as
provided under the foregoing Section 2.02(c) (whether through negotiation or by
the Accounting Firm) shall be final, binding and conclusive upon the parties
hereto. Without limiting the generality of the foregoing, any determination of
the Closing Adjustment as provided in Section 2.02(c) shall be enforceable in
court as an arbitration award. Within five days after the determination of the
Closing Adjustment, the appropriate party shall pay the Closing Adjustment,
taking into account any previous Provisional Closing Adjustment payment(s), in
the manner provided in Section 2.01(b).
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. REPRESENTATIONS AND WARRANTIES OF IMSAMET AND SELLER. Seller and
IMSAMET, jointly and severally, hereby represent and warrant to Purchaser as
follows:
(a) ORGANIZATION AND GOOD STANDING. IMSAMET and each of its
corporate Subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation (as
indicated in Article I) and is qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction in which either the
ownership or use of the properties owned or used by it, or the nature of the
activities conducted by it, requires such qualification, as indicated in
SCHEDULE 3.01(a). IMSAMET and each of its corporate Subsidiaries have the full
corporate power and authority to own, lease and operate their properties and
assets and to carry on their businesses as presently conducted. Each of
I/Arizona and SALTS is a partnership formed, validly existing and subsisting
under the laws of its jurisdiction of formation (as indicated in Article I) and
is qualified to transact business and is in good standing as a foreign
partnership in each jurisdiction in which (x) either the ownership or use of the
properties owned or used by it, or the nature of the activities conducted by it,
requires such qualification and (y) the Laws of such jurisdiction require such
qualification of partnerships, as indicated in SCHEDULE 3.01(a). Each of
I/Arizona and SALTS has the full power and authority to own, lease and operate
its properties and assets and to carry on its business as presently conducted.
(b) CONSENTS, AUTHORIZATIONS AND CONFLICTS. (1) Neither the
execution and delivery by Seller and IMSAMET of this Agreement or of any of the
other Seller Documents, nor the performance by Seller and IMSAMET of their
respective obligations thereunder, require any Consent or the giving of any
Notice applicable to Seller or any Company or SALTS (as opposed to Purchaser),
except for such Consents and Notices that:
(i) may be required under the HSR Act,
(ii) are contemplated or called for elsewhere in this
Agreement, and
(iii) may be required under the terms and conditions of
certain Contracts listed in SCHEDULE 3.01(l) and Permits listed in
SCHEDULE 3.01(g), or
(iv) have been or will be obtained or given on or before,
and remain in full force and effect as of the Closing Date.
(2) This Agreement has been duly authorized, executed and
delivered by Seller and IMSAMET and constitutes the legal, valid and binding
obligation of Seller and IMSAMET enforceable against Seller and IMSAMET in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, reorganization, insolvency, fraudulent
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conveyance or similar laws of general application relating to or affecting
the enforcement of creditors' rights. From and after the Closing, each other
Seller Document will be duly authorized, executed and delivered by the
Company or Seller party thereto and will constitute the legal, valid and
binding obligation of such parties enforceable against such party(ies) in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, reorganization, insolvency, fraudulent conveyance or similar laws
of general application relating to or affecting the enforcement of creditors'
rights.
(3) The execution and delivery by any Company or Seller of the
Seller Documents to which they are respectively a party, and the performance by
such parties of their respective obligations thereunder, does not and will not
contravene, conflict or be inconsistent with, result in a breach of, constitute
a violation of or default under, or require or result in any right of
acceleration or create or impose any Lien under (all or any of the foregoing a
"breach"): (i) any Company's, Seller's or SALTS's respective articles or
certificate of incorporation or by-laws (or other organizational documents),
(ii) any Law applicable or relating to any Company, Seller or SALTS or any of
the businesses or assets of the Companies or SALTS, or (iii) any Contract listed
in SCHEDULE 3.01(l) or Permit listed in SCHEDULE 3.01(g).
(c) MINUTE AND STOCK TRANSFER BOOKS. IMSAMET or Seller has made
available to Purchaser the original or true copies of the minute books and stock
or other equity transfer records of the Companies. Such stock or other equity
transfer records are current and accurate, and all documentary and stock
transfer tax stamps required in connection with the issuance and transfer of the
capital stock of the Companies have been duly affixed and cancelled. At the
Closing, such minute books and stock or other equity transfer records will be in
the possession of IMSAMET.
(d) FINANCIAL STATEMENTS AND LIABILITIES. (1) The Financial
Statements, which are included in the Disclosure Schedule as SCHEDULE 3.01(d),
consist of a consolidated income statement and (except as to 1993) a
consolidated cash flow statement for each of the three years ended December 31,
1993, 1994 and 1995 and for the nine months ended September 30, 1996 and
consolidated balance sheets as of December 31, 1993, 1994 and 1995 and as of
September 30, 1996. The Financial Statements present fairly, in all material
respects, the consolidated financial position of IMSAMET at December 31, 1993,
1994 and 1995 and September 30, 1996, and its consolidated results of operations
and (except as to 1993) cash flows for each of the three years in the period
ended December 31, 1995 and for the nine months ended September 30, 1996 in a
manner that is consistent with IMSAMET's historical financial accounting and
reporting practices and that, while not inconsistent with GAAP, is not in
conformity with GAAP because, among other things: (i) certain disclosures
required by GAAP are not included; (ii) deferred Income Taxes are not included
in the Financial Statements; (iii) Seller's corporate staff supply centralized
banking and cash management services to the Companies, and provide tax, general
accounting, auditing, human resources and legal services to the Companies, none
of which has been charged to the Companies or included in the Financial
Statements; and (iv) Seller has not charged the Companies any general corporate
allocation, and no such allocation is included in the Financial Statements. The
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Financial Statements reflect the consistent application of accounting principles
throughout the periods involved.
(2) At September 30, 1996, IMSAMET, on a consolidated basis, had
no indebtedness, liabilities or obligations (other than deferred Income Taxes)
required by GAAP to be included on a balance sheet which are not included in its
consolidated balance sheet at September 30, 1996 included in the Financial
Statements. Since September 30, 1996, IMSAMET, on a consolidated basis, has
incurred no indebtedness, liabilities or obligations of any nature whatsoever
except for those incurred in the ordinary course of business or as disclosed in
the Disclosure Schedule.
(e) TITLE, CONDITION AND NATURE OF TANGIBLE ASSETS. SCHEDULE
3.01(e)(1) contains a complete list of all real property ("REAL PROPERTY") and
tangible personal property and fixtures ("TANGIBLE PERSONAL PROPERTY") owned by
any of the Companies or SALTS as of October 31, 1996 having a purchase cost of
$5,000 or more. SCHEDULE 3.01(e)(2) contains a complete list of all Real
Property and Tangible Personal Property leased by any of the Companies or SALTS
as of October 31, 1996 having a fair market value (at lease inception) of $5,000
or more. The Companies and SALTS have good and marketable title to their
respective interests in Real Property and Tangible Personal Property free and
clear of all Liens other than Permitted Liens. Except as disclosed in SCHEDULE
3.01(e)(3), the buildings, structures, improvements, fixtures and appurtenances
owned, leased or operated by any of the Companies or SALTS on any Real Property,
and the Tangible Personal Property owned, leased or operated by any of the
Companies or SALTS, are maintained in a reasonable state of repair and are
adequate to operate their respective businesses. The Companies and SALTS have
received no notice of any pending or overtly threatened condemnation or eminent
domain proceeding in respect of any Real Property or Tangible Personal Property,
and the business of the Companies and SALTS is not conducted under any
restriction imposed upon the Companies and SALTS (but not imposed upon other
persons or entities conducting similar businesses or operating similar assets
for similar purposes in the same localities by any zoning, environmental, health
and safety or other Law).
(f) INTELLECTUAL PROPERTY RIGHTS. SCHEDULE 3.01(f) sets forth a
complete list of: (i) all Intellectual Property Rights owned, licensed or used
by any of the Companies or SALTS, and (ii) all license and other agreements with
respect to any of the foregoing. The Companies and SALTS own their interests in
such Intellectual Property Rights, free and clear of all Liens other than
Permitted Liens. There are no pending or overtly threatened claims (x) against
the Companies, SALTS or Seller by any person or entity claiming any adverse
right of ownership or use of any of the Intellectual Property Rights, or (y)
that the Companies, SALTS or Seller are infringing any rights in or to the
intellectual property of any other person or entity.
(g) LITIGATION AND COMPLIANCE. Except as disclosed in SCHEDULE
3.01(g) hereto, there are no governmental authority or private party actions,
suits, claims, proceedings or investigations pending or, to the best knowledge
of IMSAMET and Seller, threatened against the Companies, SALTS, Seller or any
subsidiary or affiliate thereof: (x) relating to any of the Companies or SALTS,
the ownership or business of any of the
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Companies or SALTS, any of the Shares or any properties or assets currently
owned, leased or operated by the Companies or SALTS, or (y) which questions
or challenges Seller's right, title or interest in or to any of the Shares.
Neither the Companies or SALTS, the ownership or business of the Companies or
SALTS, any of the Shares, nor any of the properties or assets now or
previously owned, leased or operated by the Companies or SALTS, is the
subject of any judgment, order or decree of any governmental authority, court
or arbitrator. Except as disclosed in SCHEDULE 3.01(g) hereto, the Companies
and SALTS have obtained all Permits. SCHEDULE 3.01(g) contains a complete
list of all Permits held by or issued in favor of the Companies or SALTS as
of the Agreement Date. Except as disclosed in SCHEDULE 3.01(g): (i) all
Permits so listed are valid and in full force and effect, (ii) there exists
no default or violation by the Companies or SALTS under any Permit issued
under any Environmental Law (and, with respect to all other Permits, there
exists no default or violation which could reasonably be expected to have a
Material Adverse Effect), and (iii) no event, act or omission has occurred
which has resulted, or (with or without notice, the passage of time or the
occurrence of any other event) could result, in the revocation or non-renewal
of any Permit issued under any Environmental Law (and, with respect to all
other Permits, which could reasonably be expected to have a Material Adverse
Effect).
(h) TAXES. Each of the Companies and SALTS has duly filed when due
(taking into account any extensions) all Tax Returns in connection with and in
respect of the Companies or SALTS. All Taxes that the Companies and SALTS were,
or will be, required by law to pay, withhold, deposit or collect as of the
Closing Date have been, or will be, duly paid, withheld, deposited or collected
and, to the extent due, have been, or will be, paid to the relevant taxing
authority. No notice has been received of any Tax deficiency outstanding,
proposed or assessed against or allocable to IMSAMET, any Subsidiary or SALTS,
and there is no waiver of any statute of limitations on the assessment or
collection of any such Tax. Neither IMSAMET, any Subsidiary nor SALTS has
executed or filed with the IRS or any other governmental authority any agreement
now in effect extending the period for assessment or collection of any Taxes
against IMSAMET, any Subsidiary or SALTS. There are no Tax Liens upon, pending
against or, to the best knowledge of IMSAMET and Seller, threatened against the
Shares or any asset of IMSAMET. The Companies and SALTS are not a party to, nor
are they bound by, nor do they have any obligation under, any Tax sharing
agreement or similar contract which would survive the Closing Date.
(i) BENEFIT PLANS. (1) The only Benefit Plans that cover only
employees of any one or more of the Companies or SALTS (and not employees of
Seller or any other subsidiary of Seller) presently maintained by, or
contributed to by, any of the Companies or SALTS are the: (i) Principal
Healthcare PPO Plan, administered in Des Moines, Iowa, covering salaried and
hourly employees of I/Arizona, (ii) Blue Cross and Blue Shield of Utah PPO Plan,
administered in Salt Lake City, Utah, covering salaried and hourly employees of
SALTS, (iii) Solar Aluminum Technology Services 401(k) Plan, covering salaried
and hourly employees of SALTS, and (iv) I/Arizona's and SALTS's disability and
life insurance plans (collectively, the "COMPANY BENEFIT PLANS"). True,
complete and correct copies of those Company Benefit Plans requested by
Purchaser have been furnished to Purchaser. The only Benefit Plans that cover
employees of any one or more
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of the Companies or SALTS as well as employees of Seller (or subsidiaries of
Seller) are the: (a) EnviroSource, Inc. Profit Sharing Plan, (b)
EnviroSource, Inc. Savings Plan, (c) EnviroSource, Inc. Health Care Plan, and
(d) Retirement Plan for Salaried Employees of International Mill Service,
Inc. (collectively, the "SELLER BENEFIT PLANS"). The Companies, SALTS, the
Company Benefit Plans and the Seller Benefit Plans are each in substantial
compliance with the applicable provisions of ERISA, and those provisions of
the Code applicable to any of them. Neither the Companies, SALTS nor
Purchaser will incur any liability with respect any of the Seller Benefit
Plans or any other Benefit Plan (excepting Company Benefit Plans) covering
employees of Seller or any other entity that would be treated as a single
employer under Code Section 414 with one or more of the Companies (prior to
Closing).
(2) All contributions to, and payments from, any Company Benefit
Plan which may have been required to be made in accordance with the terms of
such Company Benefit Plan or applicable law have been duly and timely made.
(3) All reports, returns and similar documents with respect to
any Company Benefit Plan required to be filed with any governmental agency or
distributed to the applicable Company Benefit Plan participants have been duly
and timely filed or distributed.
(4) To the best knowledge of IMSAMET and Seller, there are no
pending investigations by any governmental authority involving the Company
Benefit Plans, no termination proceedings involving the Company Benefit Plans,
and no overtly threatened or pending claims (except for claims for benefits
payable in the normal operation of the Company Benefit Plans), suits or
proceedings against the Company Benefit Plans or asserting any rights or claims
to benefits under the Company Benefit Plans which could give rise to any
liability.
(j) EMPLOYEES AND LABOR RELATIONS. SCHEDULE 3.01(j) contains a
complete list of all of the officers and directors of the Companies and SALTS
and all employees of the Companies and SALTS earning a base salary greater than
$50,000 per year. Except as disclosed in SCHEDULE 3.01(l), no employee of the
Companies or SALTS is covered by any collective bargaining agreement or a party
to any Contract with the Companies or SALTS. The Companies and SALTS are in
compliance with all Laws relating to the employment of labor, including, without
limitation, those relating to wages, hours, unfair labor practices,
discrimination and payment of social security and similar Taxes. There are no
complaints against the Companies or SALTS pending or, to the best knowledge of
IMSAMET and Seller, threatened before the National Labor Relations Board or any
similar state or local labor agency by or on behalf of any employee of the
Companies or SALTS.
(k) ENVIRONMENTAL MATTERS. The Companies and SALTS are and have been
in compliance with all applicable Environmental Laws (including with respect to
the Management of Hazardous Substances), except where the direct or indirect
out-of-pocket cost to IMSAMET to bring the Companies and SALTS into compliance
with such Environmental Laws would not exceed $500,000 in the aggregate. All
Hazardous
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Substances shipped off-site have been disposed of properly and in compliance
with Environmental Laws. Except with respect to the matter as to which
Seller has agreed to indemnify Purchaser under Section 7.01(a)(4) or as
disclosed in SCHEDULE 3.01(k): (1) no unresolved or outstanding notice,
citation, summons or order has been issued, no complaint has been filed, no
penalty has been assessed and no investigation or review is pending or
threatened by any governmental authority or private party with respect to any
(i) actual or alleged violation by the Companies or SALTS of any
Environmental Law, (ii) actual or alleged failure by the Companies or SALTS
to have or obtain any Permit required under any Environmental Law in
connection with any of their business or operations, or (iii) the Management
of any Hazardous Substance (A) by or on behalf of the Companies or SALTS or
(B) on or at any of the facilities operated by the Companies or SALTS, and
(2) neither the Companies, SALTS nor Seller has received any presently
unresolved or outstanding request for information, notice of claim, demand or
notification that the Companies or SALTS are or may be potentially
responsible with respect to any investigation or clean-up of any threatened
or actual Release of any Hazardous Substance. For purposes of this
Agreement, the out-of-pocket cost directly or indirectly to IMSAMET to bring
the Companies and SALTS into compliance with Environmental Laws and the
Losses directly or indirectly incurred by Purchaser as a result of breaches
of this Section 3.01(k), up to $500,000 in the aggregate, is referred to as
the "INITIAL ENVIRONMENTAL LIABILITY".
(l) CONTRACTS. SCHEDULE 3.01(l) sets forth a complete list of all
Contracts except for: (1) routine purchase orders (including purchase orders for
aluminum scrap and dross for any period not exceeding three months); (2)
employment and other Contracts terminable at will or on 60 days' (or less)
notice without penalty; (3) any Contract listed on any other Disclosure
Schedule; and (4) any other Contract involving liabilities or obligations for
future payments by any Company or SALTS of not more than $50,000. Seller or
IMSAMET has heretofore delivered to Purchaser copies of all Contracts requested
by Purchaser. Except as may be indicated on SCHEDULE 3.01(l) all such Contracts
are in full force and effect in accordance with the terms thereof (except to the
extent that any courses of dealing have effected deviations therefrom, none of
which are materially adverse to any Company or SALTS), and there are no
outstanding defaults by any party under any such Contract.
(m) CUSTOMERS AND SUPPLIERS. The Companies and SALTS have not lost,
nor to the best knowledge of IMSAMET and Seller has there been any threatened
loss of: any customer, supplier or account of the Companies or SALTS, the loss
of which will have a Material Adverse Effect. SCHEDULE 3.01(m) sets forth a
true and correct list of the following materials suppliers (in terms of pounds
of materials received) to the Subsidiaries: (i) I/Idaho: top five for the ten
months ended October 31, 1996, and (ii) for each of I/Arizona and I/Utah: top
ten for the ten months ended October 31, 1996.
(n) ABSENCE OF CERTAIN CHANGES. Since September 30, 1996, except as
otherwise expressly contemplated by this Agreement or as set forth in SCHEDULE
3.01(n): (i) there has not been a material adverse change in the business,
financial condition, earnings or prospects of IMSAMET on a consolidated basis,
and (ii) each of the
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Companies and SALTS: (A) has conducted its business and operations only in
the ordinary course consistent with recent past practice and (B) has not:
(1) issued or sold any shares of its capital stock or debt
securities or partnership interests, or granted any rights calling for
the issuance or sale of any of the foregoing (including, without
limitation, options, warrants, convertible or exchangeable securities
or similar rights);
(2) amended its certificate or articles of incorporation or
by-laws or partnership certificate or partnership agreement;
(3) granted any right to severance or termination payment
to any of its officers, directors, partners or employees;
(4) created or otherwise become liable with respect to any
indebtedness for borrowed money (except for indebtedness owed to
Seller or its subsidiaries, other than another Company, which will be
capitalized at Closing as provided under Section 4.06);
(5) guaranteed, indemnified or otherwise become liable for
the obligations or liabilities of another person or entity except in
the ordinary course of business; or
(6) agreed or committed, whether or not in writing, to do
any of the foregoing.
(o) SUBSIDIARIES. The only subsidiaries of IMSAMET are I/Idaho and
I/Utah, both of which are 100% owned by IMSAMET, and I/Arizona, which is 70%
owned by IMSAMET. IMSAMET has no other equity interest in any other entity
except for its 50% partnership interest in SALTS.
(p) CAPITALIZATION AND TITLE TO SHARES. The authorized capital stock
of IMSAMET consists of 5,000 shares of Common Stock, par value $1.00 per share,
of which 1,000 shares (the "Shares") are issued and outstanding and held by
Seller, and are the only issued and outstanding shares of capital stock of
IMSAMET. All of the Shares have been duly authorized and are validly issued,
fully paid and nonassessable, and no personal liability attaches to the
ownership thereof. Seller is the lawful record and beneficial owner of the
Shares, all of which will at Closing be free and clear of all Liens. Except as
imposed under Permitted Liens described in clause (vii) of the definition
thereof in Article I, Seller has all requisite right, title, power and authority
to sell, assign, transfer and deliver the Shares to Purchaser. Except as
provided in any of the Contracts listed in SCHEDULE 3.01(l), there are no:
(A) proxies, voting trusts or other agreements or
understandings with respect to the voting of any of the shares of
capital stock or other equity interests of the Companies or SALTS
(except as imposed under Permitted Liens described in clause (vii) of
the definition thereof in Article I);
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(B) securities convertible into or exchangeable for any
shares of capital stock or other equity interests of the Companies or
SALTS;
(C) options, warrants or other rights to purchase or
subscribe for any shares of capital stock or other equity interests
of the Companies or SALTS or for securities convertible into or
exchangeable for any shares of capital stock or other equity interests
of the Companies or SALTS;
(D) plans, agreements or commitments of any kind or
description relating to the issuance or purchase of any shares of
capital stock or other equity interests of the Companies or SALTS, any
such convertible or exchangeable securities or any such options,
warrants or other rights; or
(E) agreements or commitments of any kind or description
which may obligate any of the Companies or SALTS to issue or purchase
or otherwise acquire any of its securities.
(q) BANK ACCOUNTS. SCHEDULE 3.01(q) sets forth a complete list of
the names and locations of all banks, brokers, depositories and other financial
institutions in which the Companies have an account or safe deposit box,
including all relevant account titles, account numbers and the identity of
persons authorized to withdraw funds (or other items) therefrom.
(r) ACCOUNTS RECEIVABLE. All accounts receivable of IMSAMET that
will be reflected on the Closing Balance Sheet ("ACCOUNTS RECEIVABLE") will
represent valid obligations arising from sales actually made or services
actually performed in the ordinary course of business. The Accounts Receivable
will be, as of the Closing Date, current and collectible.
(s) INSURANCE. SCHEDULE 3.01(s) contains a list of all of the
policies of insurance maintained as of the Agreement Date by the Companies
and/or SALTS or by Seller providing coverage for the Companies and/or SALTS
(excluding those providing benefits for employees thereof) in effect as of the
Agreement Date. Neither the Companies, SALTS nor Seller is in default with
respect to any provisions of any such policy (as it applies to any Company or
SALTS) nor, to the best knowledge of IMSAMET and Seller, has any of them failed
to give notice or present any claim of any Company or SALTS thereunder in a due
and timely fashion. No insurance carrier has given written notice of its
intention to discontinue any insurance coverage provided under any such policy
(as it applies to any Company or SALTS).
(t) INVENTORY. All inventory of the Companies and SALTS consists of
materials usable or saleable in the ordinary course of business, and the
aggregate market value of the inventory included in the Bid Balance Sheet is at
least equal to the value specified therefor in the Bid Balance Sheet.
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3.02. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to IMSAMET and Seller as follows:
(a) ORGANIZATION AND GOOD STANDING. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the full corporate power and authority to own, lease and
operate its properties and assets and to carry on its businesses as presently
conducted.
(b) CONSENTS, AUTHORIZATIONS AND CONFLICTS. Neither the execution
and delivery by Purchaser of this Agreement or any of the other the Purchaser
Documents, nor the performance by Purchaser of its obligations thereunder,
require any Consent or Notice applicable to Purchaser (as opposed to IMSAMET or
Seller) (including, without limitation, Consents and Notices necessary or
required under or with respect to any contract or license of Purchaser, its
parent corporation or any subsidiary thereof) except for such Consents and
Notices that (i) may be required under the HSR Act or (ii) have been duly
obtained (in the case of Consents) or given (in the case of Notices) and are
unconditional and in full force and effect. This Agreement has been duly
authorized, executed and delivered by Purchaser and constitutes the legal, valid
and binding obligation of Purchaser enforceable against Purchaser in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
reorganization, insolvency, fraudulent conveyance or similar laws of general
application relating to or affecting the enforcement of creditors' rights. From
and after the Closing, each other Purchaser Document will be duly authorized,
executed and delivered by Purchaser and will constitute the legal, valid and
binding obligation of Purchaser enforceable against Purchaser in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
reorganization, insolvency, fraudulent conveyance or similar laws of general
application relating to or affecting the enforcement of creditors' rights. The
execution and delivery by Purchaser of the Purchaser Documents, and the
performance by Purchaser of its obligations thereunder, does not and will not
contravene, conflict or be inconsistent with, result in a breach of, or
constitute a violation of or default under: (i) Purchaser's articles or
certificate of incorporation or by-laws, (ii) any Law applicable or relating to
Purchaser or (iii) any contract or license of Purchaser, its parent corporation
or any subsidiary thereof.
(c) FINANCING. (i) By the close of business on December 6, 1996,
Purchaser shall deliver to Seller copies of such existing credit lines of
Purchaser, and/or such firm commitments to provide additional debt or equity
financing to Purchaser, as Purchaser shall then have in order to provide to
Purchaser at the Closing (together with its own financial resources) the moneys
necessary in order to pay the entire Purchase Price, together with such
financial and other information with respect to such financing(s), the sources
of such financing(s) and Purchaser's own financial resources as shall be
reasonably requested by Seller. From and after December 6, 1996 and at all
times through the Closing, Purchaser will have sufficient financial resources in
order to provide to Purchaser the moneys necessary to pay the entire Purchase
Price at the Closing. Any such financial and other information with respect to
such financings(s), financing source(s) and financial resources (if any)
delivered to Seller hereunder will be, to the best knowledge of Purchaser, true,
correct and complete in all material respects. Purchaser and its subsidiaries
will comply with all covenants with respect to, and all conditions within their
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control to, such financing(s), and Purchaser will promptly advise Seller of any
facts, circumstances or events reasonably likely to prevail or occur that would
grant any such financing source the right to refuse to fund, or otherwise lead
such financing source to refuse to or be unable to fund, the financing(s)
committed to by such source(s).
(ii) In the event that Purchaser fails to deliver the documents
and information called for under the first sentence of Section 3.02(c)(i) above
by the time specified therein, then Purchaser shall have the right to terminate
this Agreement forthwith upon written or oral (confirmed in writing) notice to
Seller. In order to avoid any doubt, the parties confirm that the obligation of
Seller to consummate the Purchase and Sale is not subject to any financing
contingency or condition.
3.03. "TO THE BEST KNOWLEDGE, ETC." For all purposes of this
Agreement, any use of the phrases "to the best knowledge", "to the knowledge",
or "to the awareness" of IMSAMET, any other Company and/or Seller, and words of
similar import, when modifying any particular representation or warranty set
forth herein or in any other Seller Document, shall mean that the officers and
managerial, professional and supervisory technical employees of such party or
both such parties (as the context may indicate) have no knowledge that such
representation and warranty is not complete and correct in all respects, and
that: (A) such party or parties (as the context may indicate) have made such
reasonable investigation, and have made such reasonable inquiries as a
reasonable person under the circumstances would to determine the accuracy of
such representation and warranty, and (B) nothing has come to the attention of
the officers and managerial, professional and supervisory technical employees of
such party or parties (as the context may indicate) in the course of such
investigation and review, or otherwise, which would reasonably cause any of them
to believe that such representation and warranty is not complete and correct.
3.04. NO OTHER REPRESENTATIONS AND WARRANTIES BY IMSAMET AND SELLER.
Seller and IMSAMET shall not be deemed to have made to Purchaser (or any other
person or entity) any representation or warranty other than as expressly made by
Seller and IMSAMET in Section 3.01 hereof (as such representations and
warranties are modified by the Disclosure Schedules relating thereto). Without
limiting the generality of the foregoing, and notwithstanding any other express
representations and warranties made by Seller and IMSAMET in Section 3.01 hereof
(or elsewhere in this Agreement or in any certificate or document delivered
pursuant hereto), Seller and IMSAMET make no representation or warranty to
Purchaser (or any other person or entity) with respect to:
(1) any projections, estimates or budgets heretofore delivered to or
made available of future revenues, expenses or expenditures, future results
of operations (or any component thereof), future cash flows or future
financial condition (or any component thereof) of the Companies and/or
SALTS or the future business and operations of the Companies and/or SALTS;
(2) the availability or value to the Companies and/or SALTS after the
Closing of any net operating losses ("NOLs") that may now be available to
them.
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(3) any other information or documents made available with respect to
the Companies and/or SALTS or the business and operations of the Companies
and/or SALTS, except as expressly covered by a representation and warranty
contained in Section 3.01 hereof.
ARTICLE IV
CONDUCT AND TRANSACTIONS PRIOR TO CLOSING; AFTER CLOSING
4.01. ACCESS TO RECORDS AND PROPERTIES OF THE COMPANIES. (a) IMSAMET
and Seller shall give Purchaser and Purchaser's counsel, accountants, lenders
and their respective employees, agents and representatives such access (during
normal business hours) to, and opportunity to examine, the books, records,
files, documents, properties and assets of, the Companies, and cause the
officers, directors, employees, agents, representatives, legal counsel,
accountants, auditors and actuaries of the Companies to furnish such financial
and operating data and other information with respect to the Companies, as
Purchaser shall from time to time reasonably request. Any investigation
pursuant to this Section 4.01 shall be conducted in such manner as not to
interfere unreasonably with the ordinary course of the business and operations
of the Companies or with the confidentiality respecting the transactions
contemplated by this Agreement.
4.02. OPERATION OF THE COMPANIES. (a) From the date hereof to the
Closing Date, except to the extent that Purchaser shall consent in writing, the
Companies shall operate their respective businesses only in the ordinary course
consistent with past practice. Without limiting the generality of the
foregoing, the Companies shall:
(1) not merge or consolidate with any other entity, acquire
any other business or entity, or agree to do any of the foregoing;
(2) notify Purchaser of any significant loss of, damage to
or destruction of any of its material properties or assets;
(3) maintain in full force and effect all present insurance
coverages and apply the proceeds received under any such coverages as
a result of any loss of, damage to or destruction of any of its
properties or assets to the repair, restoration or replacement
thereof;
(4) use their reasonable best efforts to preserve the
present managerial employees (except for Paul Minders, with whom
IMSAMET has entered into an agreement whereby his employment will
terminate on January 1, 1997), reputation and business relationships
of the Companies with persons and entities having business dealings
with it;
(5) refrain from taking any action which (if not remedied)
would render any representation and warranty contained in Section 3.01
inaccurate at and as of the Closing Date, and shall promptly advise
Purchaser of any such event or circumstance.
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(b) Notwithstanding Section 4.02(a), the Companies and Seller shall
be free to dividend or otherwise remove cash from the Companies and to effect
the transactions contemplated by Section 4.06.
(c) Purchaser shall make all commercially reasonable efforts in order
to timely obtain the firm financing commitments contemplated by Section 3.02(c).
Purchaser shall refrain from taking any action which (if not remedied) would
render any representation or warranty contained in Section 3.02 hereof
inaccurate at and as of the Closing Date to not be fulfilled, and shall promptly
notify Seller of any other breach of any representation, warranty, covenant,
condition or obligation of Purchaser hereunder.
4.03. CONSENTS AND NOTICES. Promptly after the date hereof, the
parties hereto shall use their respective best efforts to obtain all Consents
and give all Notices which may be necessary in order to consummate the Purchase
and Sale and/or any of the other transactions contemplated hereby in accordance
with the terms hereof. The parties hereto shall otherwise cooperate with each
other in discharging their respective obligations under this Section 4.03, and
shall promptly advise the other parties hereto of any difficulties encountered
in obtaining any such Consents or giving any such Notices.
4.04. HSR ACT. In furtherance of and without limitation upon Seller's,
IMSAMET's and Purchaser's obligations under Sections 4.03 and 4.05, Seller
shall, and shall cause IMSAMET to, and Purchaser shall, prepare and file with
Justice and the FTC any and all notifications, special reports, documents,
materials and information, and take any and all other actions that, in each
case, may be reasonably necessary or desirable in order to obtain any Consent or
give any Notice with respect to this Agreement, the Purchase and Sale and the
other transactions contemplated hereby and thereby under the HSR Act or any
other law, rule or regulation administered by Justice or the FTC. In addition
the parties hereto shall not file any documents, materials or information with,
or take any other action before or at the request of, Justice or the FTC without
first consulting with (in the case of IMSAMET or Seller) counsel to Purchaser
identified in Section 5.02(g) and (in the case of Purchaser) counsel to IMSAMET
and Seller identified in Section 5.01(h). Subject to the foregoing, the parties
hereto shall promptly comply with any request of Justice or the FTC for
additional documents, materials or information and shall use their respective
best efforts to obtain early termination of any applicable waiting periods under
the HSR Act or otherwise.
4.05. BEST EFFORTS TO SATISFY CONDITIONS. Each of Purchaser, Seller
and IMSAMET shall use its best efforts to cause the conditions to the Closing
set forth in Article V hereof to be satisfied, to the extent that the
satisfaction of such conditions is in the control of such party, as soon as
practicable after the date hereof; PROVIDED, HOWEVER, the foregoing shall not
constitute a limitation upon the covenants and obligations of any party
otherwise expressly set forth in this Agreement.
4.06. INDEBTEDNESS TO SELLER. On or before the Closing Date, any
indebtedness owed by any Company to Seller or any subsidiary of Seller (other
than another Company) shall be contributed to the capital of such Company, in
full satisfaction of such indebtedness.
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4.07. TRANSFER RESTRICTIONS. From and after the date hereof and until
the Closing, Seller shall not sell, assign, pledge, donate, transfer, encumber
or otherwise dispose of any of the Shares, and IMSAMET shall not sell, assign,
pledge, donate, transfer, encumber or otherwise dispose of any of its ownership
interests in the Subsidiaries or SALTS (except, in each case, for Permitted
Liens).
4.08. CONFIDENTIAL INFORMATION. (a) In the event the Closing shall
not occur, Purchaser and Purchaser's counsel, accountants, lenders and their
respective employees, agents and representatives shall treat in confidence all
confidential documents and materials and other confidential information which
they shall have obtained regarding the Companies or Seller during the course of
the negotiations leading to the transactions contemplated hereby, the
investigation of the Companies and the preparation of this Agreement, and shall
return all copies (including computer files) of non-public documents and
materials which have been furnished in connection therewith. However, nothing
contained herein shall prohibit Purchaser or any such other person or entity
from (subject to the penultimate sentence of Section 4.03 and to Section 8.14)
supplying or filing such documents, materials or other information with Justice
or the FTC or such federal, state, regional, special district, local or foreign
government, agency or authority which Purchaser deems necessary or appropriate
in connection with the matters contemplated by Sections 4.03 and 4.04.
(b) In the event the Closing shall occur, Seller and Seller's
counsel, accountants, lenders and their respective employees, agents and
representatives shall treat in confidence all confidential documents and
materials and other confidential information which they shall have obtained
regarding the Companies, Purchaser or any affiliate thereof, if obtained at any
time insofar as the same relates to the Companies, or, (as the same relates to
Purchaser or any affiliate), if obtained during the course of the negotiations
leading to the transactions contemplated hereby, the investigation of the
Companies and the preparation of this Agreement, and shall return or destroy all
copies (including computer files) of non-public confidential documents and
materials which have been furnished in connection therewith or which contain or
incorporate any of the foregoing. However, nothing contained herein shall
prohibit Seller or any such other person or entity from (subject to the second
sentence of Section 4.03 and to Section 8.14) supplying or filing such
documents, materials or other information with Justice or the FTC or such
federal, state, regional, special district, local or foreign government, agency
or authority which Seller deems necessary or appropriate in connection with the
matters contemplated by Sections 4.03 and 4.04.
4.09. TAX RETURNS AND PAYMENTS. (a) The Income Tax returns, reports
and filings of Seller shall include all items of income, gain, loss, deduction
or credit of the Companies attributable to all Income Tax periods (or portions
thereof) ending prior to the Closing Date (herein referred to as the "SELLER
INCOME TAX PERIODS"); and, Seller shall be responsible for and shall pay all
Income Taxes payable (other than deferred Income Taxes) as a consequence of the
inclusion or omission of such items in the consolidated Income Tax returns,
reports and filings of Seller for Seller Income Tax Periods and shall timely
file such tax returns and reports.
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(b) With respect to the Seller Income Tax Period between the end of
the most recent taxable period of the Companies and the day immediately
preceding the Closing Date, Purchaser shall cause to be prepared and delivered
to Seller (to the extent not already prepared and delivered) in the normal time-
frame followed by Seller and the Companies consistent with past practice and in
all events within 15 days after it shall have been requested by Seller, the
package of Income Tax information materials heretofore provided to Seller by the
Companies in accordance with past practice, including past practice as to
information schedules and work papers and as to the method of computation of
separate taxable income or other relevant measure of income of the Companies.
(c) Except as otherwise provided in Section 4.09(a) and (b), IMSAMET
or the Purchaser shall timely pay all Taxes for the periods to which the
Straddle Period Returns relate, and the Closing Balance Sheet shall include
appropriate recorded liabilities for all such Taxes. Any such liabilities for
Taxes based on payroll shall include both Taxes withheld and Taxes accrued (and
remaining unpaid) attributable to any period prior to the Closing Date. Any
such liabilities for sales and use Taxes (remaining unpaid) shall be accrued for
all sales or purchases attributable to any period prior to the Closing Date.
Taxes on Real Property or personal property shall be prorated on the Closing
Balance Sheet consistent with recent past practice, resulting in either prepaid
expenses or accrued liabilities, as the case may be.
(d) If any IRS examination of any Seller Income Tax Period results in
one or more adjustments that, together with cumulative book/tax differences as
of the Closing Date, result in Income Tax payments by Purchaser and the
Companies greater than the "Deferred income taxes" liability included on the Bid
Balance Sheet, Seller shall reimburse Purchaser for such additional Income Tax
payments. If, on the other hand, any IRS examination of any Seller Income Tax
Period results in one or more adjustments that reduce Purchaser's or the
Companies' Income Taxes for any period subsequent to the Closing Date, Purchaser
shall pay to Seller an amount equal to the resulting Income Tax savings. Except
as provided in the foregoing two sentences of this Section 4.09(d), as between
Seller and the Companies, Income Tax provisions recorded through the Closing
Date are deemed final, notwithstanding any elections Seller may have made in its
consolidated federal Income Tax returns regarding the allocation of income taxes
among the members of Seller's consolidated group.
4.10. COOPERATION. After the Closing Date, IMSAMET, Purchaser and
Seller shall (1) make available to each other, as reasonably requested, and to
any taxing authority or any accountant or other authorized employee
representative, all information, records or documents (i) relating to Tax
liabilities or potential Tax liabilities of the Companies for all periods prior
to or including the Closing Date, and (ii) reasonably necessary in order to
prepare consolidated GAAP financial statements for any period prior to or
including the Closing Date, and (2) shall preserve all such information, records
and documents until the expiration of any applicable statute of limitations
(including extensions thereof) or other relevant period. Except as required by
Law, neither IMSAMET nor Purchaser shall take any action with respect to Taxes
or Tax Returns which could result in any liability, payment or obligation to
Seller in respect of any Taxes owing by the Companies under this Agreement or
otherwise, without the prior written consent of Seller. IMSAMET and
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Purchaser shall promptly notify Seller in writing of any notice, inquiry,
audit, examination or other state of fact which could result in any
liability, payment or obligation to Seller in respect of any Taxes owing by
any of the Companies under this Agreement or otherwise. Seller shall be
responsible for any assessment of tax for periods up to the Closing Date,
shall control any audit or assessment process, and shall bear its own costs.
Notwithstanding any other provisions hereof, each party shall bear its own
expenses in complying with the foregoing provisions.
4.11. COMPETING OFFERS. From the date hereof until the Closing Date,
Seller will not, nor will it permit any of its subsidiaries, affiliates or
agents to: solicit or encourage an offer or accept an unsolicited offer from, or
enter into any negotiations, agree in principle, commit to or contract with, any
other person or entity with respect to any sale or other disposition of the
Companies or SALTS or any interest therein.
ARTICLE V
CONDITIONS OF CLOSING
5.01. CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to consummate the Purchase and Sale are subject to the satisfaction of
the following conditions, each of which may be waived by Purchaser (in whole or
in part).
(a) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS. The
representations and warranties of IMSAMET and Seller set forth in Section 3.01
or in any other Seller Document (other than Section 3.01(k) and, with respect to
environmental matters only, 3.01(n)(i) or any "bring-downs" thereof, inasmuch as
Section 5.01(m) hereof expresses the Closing condition agreement of the parties
as it relates to environmental matters) shall be true and correct on the Closing
Date as though made on and as of the Closing Date, except to the extent that any
failure of any one or more of such representations or warranties (other than
those set forth in Section 3.01(o) or 3.01(p), or any "bring-down" thereof)
shall not in the aggregate have a Material Adverse Effect. IMSAMET and Seller
shall have performed the agreements and obligations required to be respectively
performed by them under this Agreement prior to the Closing Date. IMSAMET and
Seller shall have executed and delivered to Purchaser a certificate or
certificates certifying to their compliance with the foregoing. Notwithstanding
the first sentence of this Section 5.01(a): (1) from time to time on or prior to
the Closing, Seller and IMSAMET shall be permitted to deliver to Purchaser
information which changes, modifies or supplements the representations and
warranties set forth in Section 3.01 and/or the Disclosure Schedule because of
the occurrence or non-occurrence of any event, or any circumstance arising,
after the Agreement Date; (2) upon such delivery such representations and
warranties (and/or Disclosure Schedule) shall deemed to be amended by such
information, and (3) if such event(s) or circumstance(s) result(s) in the
aggregate in a Material Adverse Effect, then the condition stated in the first
sentence of this Section 5.01(a) shall be deemed not to have been satisfied.
If, notwithstanding (x) any failure of such condition as provided in the
foregoing clause "(3)", or (y) any misrepresentation on the part of Seller
and/or IMSAMET as to which Purchaser has received written notice from or on
behalf of Seller prior to the Closing, Purchaser proceeds with the Closing, then
such failure of
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condition and/or such misrepresentation (as the case may be) shall be deemed
for all purposes to be waived.
(b) CONSENTS AND NOTICES. All Consents and Notices which may be
necessary in order to consummate the Purchase and Sale, or any of the other
transactions contemplated hereby in accordance with the terms hereof, shall have
been duly obtained (in the case of Consents) or given (in the case of Notices)
and shall be unconditional and in full force and effect. Without limiting the
generality of the foregoing, all waiting periods (including any extensions)
shall have expired or shall have been earlier terminated under the HSR Act.
(c) LEGAL RESTRAINTS. There shall not have been proposed or enacted
any Law, or any change in any existing Law, which prohibits or delays, or
threatens to prohibit or delay, the consummation of any of the Purchase and Sale
or any of the other transactions contemplated by this Agreement or which could
reasonably have a Material Adverse Effect. No order, decree, judgment or ruling
by any court or governmental authority shall have been rendered or issued, no
action, suit, claim or proceeding ("ACTION") shall have been commenced or
threatened by any governmental authority, and no non-frivolous Action shall have
been commenced by any private party, to restrain, enjoin or hinder, or to seek
damages from Purchaser, any affiliate thereof or the Companies on account of the
consummation of any of the Purchase and Sale or any of the other transactions
contemplated by this Agreement.
(d) RELEASE OF GUARANTEES. The Companies shall have been released
from all liability under any guarantee of contracts or other obligations of the
Seller and/or any of its subsidiaries (other than the Companies and SALTS).
(e) SHARE CERTIFICATES. Seller shall have delivered to Purchaser a
certificate or certificates representing the Shares, duly endorsed in blank or
accompanied by a stock power covering such Shares duly executed in blank by
Seller, and with all required stock transfer tax stamps affixed.
(f) RECEIPTS. Seller shall have executed and delivered one or more
written instruments, in form and substance reasonably satisfactory to Purchaser,
acknowledging Seller's receipt of the Purchase Price.
(g) RESIGNATIONS. Each officer and director of IMSAMET and the
Subsidiaries which are corporations holding such positions immediately prior to
the Closing Date shall have executed and delivered to the Purchaser a
resignation from such positions. Each officer, general manager and member of
the operating committee of I/Arizona appointed by IMSAMET, if any, holding such
positions immediately prior to the Closing Date shall have executed and
delivered to the Purchaser a resignation from such positions. Each officer and
member of the partnership board of SALTS appointed by IMSAMET, if any, holding
such positions immediately prior to the Closing Date shall have executed and
delivered to the Purchaser a resignation from such positions.
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(h) OPINION OF COUNSEL. Purchaser shall have received an opinion of
Dechert Price & Rhoads, special counsel to IMSAMET and Seller, dated the Closing
Date and substantially as provided in EXHIBIT B hereto.
(i) MINUTE BOOKS. The minute books and stock transfer records of
each of the Companies, and their respective corporate seals, shall have been
delivered to Purchaser.
(j) BANK SIGNATURE CARDS. IMSAMET shall have delivered such
signature cards or other required documents for each of the Companies'
respective accounts and safe deposit boxes at banks, brokers, depositories or
other financial institutions so as to enable Purchaser to designate the persons
authorized to withdraw funds (or other items) therefrom from and after the
Closing.
(k) CORPORATE DOCUMENTS. Seller and IMSAMET shall have delivered to
Purchaser: (i) a certified copy of a certificate of good standing, the
certificate of incorporation and by-laws of Seller, IMSAMET, I/Idaho and I/Utah;
(ii) a certified copy of the partnership agreement of I/Arizona; (iii)
certified copies of the partnership agreement of SALTS; and (iv) a certified
copy of resolutions of the board of directors of Seller and IMSAMET authorizing
the execution, delivery and performance of this Agreement and any other
documents delivered by Seller and IMSAMET hereunder.
(l) TITLE POLICY. Purchaser shall have received an owner's policy of
title insurance, half the expense of which shall be borne by Seller, issued by a
title company reasonably acceptable to Purchaser, with respect to each owned
parcel of Real Property and in the amount of the fair market value thereof (as
accepted by such title company), which title policy shall show that the owner
Company has good and marketable title to each such parcel of Real Property, free
and clear of all Liens except (i) Permitted Liens, and (ii) non-Permitted Liens
waived or accepted by Purchaser in writing prior to Closing.
(m) ENVIRONMENTAL REPORT. Purchaser shall have a separate
environmental audit report covering each parcel of Real Property, which
report(s) (the "ENVIRONMENTAL REPORT") is (are) to be: (1) prepared by an
environmental engineering firm reasonably acceptable to Seller and Purchaser and
the fees and expenses of which shall be borne one-half by each of Seller and
Purchaser, and (2) in accordance with the ASTM Standard for Phase 1
environmental assessments, including a review of waste management and record-
keeping compliance with respect to the operations at each parcel of Real
Property. If the Environmental Report identifies and specifies any non-
compliance(s) with Environmental Laws (i) the failure to remediate or cure of
which would prevent the Companies and SALTS from continuing to operate their
businesses in the ordinary course consistent with past practice, and (ii) the
out-of-pocket cost directly or indirectly to IMSAMET of which to bring the
Companies and SALTS into compliance with such Environmental Laws would be in
excess of $500,000 in the aggregate, then this condition shall be deemed not to
have been satisfied; UNLESS, HOWEVER, Seller either: (A) remediates or cures
such non-compliance(s) (or agrees to do so, on terms reasonably acceptable to
Purchaser) so that such out-of-pocket cost does not exceed $500,000 in the
aggregate, or (B) agrees to designate such non-compliance(s) as a "Section
5.01(m) Matter",
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indemnifiable by Seller under Section 7.01(a)(5) hereof (any such
non-compliance(s) as to which Seller so agrees, a "SECTION 5.01(M) MATTER").
In the event that the costs described in the foregoing clause (ii) shall
exceed $2,500,000, then the indemnification limit provided for under Section
7.01(b)(5)(A) shall be increased by the amount of such excess (up to an
additional $7,500,000). In the event that the costs described in the
foregoing clause (ii) shall exceed $10,000,000, then notwithstanding any
agreement of Seller to remediate or cure the underlying non-compliance or to
designate that same as a "Section 5.01(m) Matter", this condition shall be
deemed not to have been satisfied.
(n) UPDATED PROPERTY SCHEDULES. Seller shall have delivered to
Purchaser updates to Schedules 3.01(e)(1) and 3.01(e)(2).
(o) BENEFIT PLANS. Seller shall take any and all actions necessary
or appropriate to cause each of the Companies and SALTS to cease to be a
participating employer or participating sponsor of any of the Seller Benefit
Plans effective as of the Closing Date. Benefits accrued for employees of any
of the Companies or SALTS under any of the Seller Benefit Plans through the
Closing Date shall be paid to such employees in accordance with the terms of the
Seller Benefit Plans, as applicable.
5.02. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller
to consummate the Purchase and Sale are subject to the satisfaction of the
following conditions, each of which may be waived by Seller (in whole or in
part).
(a) REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS. The
representations and warranties of Purchaser set forth in Section 3.02 hereof or
in any Purchaser Document shall be true and correct in all material respects on
the Closing Date as though made on and as of the Closing Date. Purchaser shall
have performed the agreements and obligations required to be performed by it
under this Agreement prior to the Closing Date. Purchaser shall have executed
and delivered to Seller a certificate or certificates certifying to its
compliance with the foregoing, in form and substance reasonably satisfactory to
Seller.
(b) CONSENTS AND NOTICES. All Consents and Notices the failure to
obtain or to give of which may result in any material liability to or obligation
of Seller shall have been duly obtained (in the case of Consents) or given (in
the case of Notices) and shall be unconditional and in full force and effect.
Without limiting the generality of the foregoing, all waiting periods (including
any extensions) shall have expired or shall have been earlier terminated under
the HSR Act.
(c) LEGAL RESTRAINTS. There shall not have been proposed or enacted
any Law, or any change in any existing Law, which prohibits or delays, or
threatens to prohibit or delay, the consummation of any of the Purchase and Sale
or any of the other transactions contemplated by this Agreement or which could
reasonably have a Material Adverse Effect. No order, decree, judgment or ruling
by any court or governmental authority shall have been rendered or issued, no
Action shall have been commenced or threatened by any governmental authority,
and no non-frivolous Action shall have been commenced by any private party, to
restrain, enjoin or hinder, or to seek damages from
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Purchaser, any affiliate thereof or the Company on account of the
consummation of any of the Purchase and Sale or any of the other transactions
contemplated by this Agreement.
(d) RELEASE OF GUARANTEES. Seller and its subsidiaries shall have
been released from all liability under any guarantee of Contracts listed on
SCHEDULE 3.01(I).
(e) PURCHASE PRICE. Purchaser shall have delivered to Seller the
Purchase Price, in the manner provided in Section 2.01(b).
(f) RECEIPT. Purchaser shall have executed and delivered to Seller a
written instrument, in form and substance reasonably satisfactory to Seller,
acknowledging Purchaser's receipt of the certificate or certificate(s)
representing the Shares.
(g) OPINION OF COUNSEL. Seller shall have received an opinion of
Haynes and Boone, LLP, legal counsel to Purchaser, dated the Closing Date, and
substantially as provided in EXHIBIT C hereto.
(h) CORPORATE DOCUMENTS. Purchaser shall have delivered to Seller:
(i) a certified copy of the certificate of incorporation and by-laws of
Purchaser; and (ii) a certified copy of resolutions of the board of directors of
Purchaser authorizing the execution, delivery and performance of this Agreement
and any other document delivered by Purchaser hereunder.
ARTICLE VI
CLOSING DATE AND TERMINATION
6.01. CLOSING DATE. The Closing shall take place at the offices of
Haynes and Boone, LLP, 901 Main Street, Dallas, Texas 75202, at 10:00 A.M.,
local time, on the Closing Date, unless another place is agreed to by Purchaser
and Seller.
6.02. TERMINATION OF AGREEMENT. (a) This Agreement may be terminated
by either Purchaser or Seller, upon notice to the other parties hereto, if the
Closing shall not have occurred on or before January 31, 1997 (the "DEADLINE
DATE"); PROVIDED, HOWEVER, that: (1) if on such Deadline Date the Closing shall
not have occurred by reason of the failure to obtain the Consent required under
the HSR Act due to a request by Justice or the FTC for additional information,
then the Deadline Date shall automatically be extended to the date that is three
business days following the date that such Consent is obtained (PROVIDED that in
no event shall the Deadline Date be extended to beyond March 31, 1997; (2)
Purchaser shall not be permitted to terminate this Agreement under this Section
6.02 if the Closing shall not have occurred by the Deadline Date by reason of a
breach by Purchaser of its obligations under Section 4.05; and (3) Seller shall
not be permitted to terminate this Agreement under this Section 6.02 if the
Closing shall not have occurred by the Deadline Date by reason of a breach by
either Seller or IMSAMET of their obligations under Section 4.05.
(b) Termination of this Agreement under this Section 6.02 shall
automatically and irrevocably terminate all liabilities and obligations of the
terminating party
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(and in the case such party is Seller, IMSAMET) arising under this Agreement;
all rights of the terminating party (and in the case such party is Seller,
IMSAMET) arising under this Agreement, and all liabilities and obligations of
the other party or parties hereto, shall survive any such termination.
Notwithstanding the foregoing, the liabilities and obligations arising under
Section 4.08 shall survive any termination of this Agreement.
ARTICLE VII
INDEMNIFICATION
7.01. BY SELLER. (a) Subject to the limitations set forth below in
this Section 7.01, from and after the Closing Date, Seller shall indemnify the
Purchaser against, and hold the Purchaser harmless from, any and all Losses
directly or indirectly incurred, suffered, sustained or required to be paid by,
or sought to be imposed upon Purchaser, including Purchaser's share of Losses
incurred, suffered, sustained or required to be paid by, or sought to be imposed
upon any of the Purchaser's Indemnified Persons, resulting from, relating to or
arising out of:
(1) any breach as of the Closing Date of any of the
representations or warranties of IMSAMET or Seller set forth in
Section 3.01 hereof and/or the Disclosure Schedule,
(2) any breach of any covenant or agreement made by IMSAMET
(excluding actions taken by IMSAMET after Closing) or Seller under
this Agreement,
(3) subject to the first sentence of Section 4.09(d), any
liability, payment or obligation in respect of any Taxes owing by the
Companies or SALTS for periods prior to the Closing Date (other than
"Deferred income taxes" included on the Bid Balance Sheet) including
any liability imposed upon the Companies or SALTS because of joint and
several liability as a member of Seller's consolidated group,
(4) any liability, payment or obligation of Seller or the
Companies or SALTS or any post-Closing affiliate thereof in connection
with the removal and disposal of any radioactive material owned by
Ameristeel Corp. (formerly named Florida Steel Corporation) located at
I/Utah's Wendover, Utah facility, or any other actions required with
respect thereto pursuant to any Environmental Law or by any relevant
Orders for Compliance of the Utah Solid and Hazardous Waste Control
Board,
(5) any Section 5.01(m) Matter (without duplication for
Losses indemnifiable under clause (1) of this Section 7.01(a)), and
(6) the Contract between IMSAMET and James C. Daley, the
former President of IMSAMET, with respect to post-employment benefits.
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(b) The right to indemnification under this Section 7.01 is subject
to the following limitations:
(1) The indemnification rights under this Section 7.01
shall expire at the respective times set forth in Section 7.05, and
Seller shall have no liability under this Section 7.01 or otherwise in
connection with the transactions contemplated by this Agreement unless
the Purchaser gives written notice to Seller asserting a claim for
Losses, including reasonably detailed specific facts and circumstances
pertaining thereto, before the expiration of the periods of time that
the underlying representations, warranties, covenants and agreements
survive under Section 7.05 hereof.
(2) "ENVIRONMENTAL CLAIMS" means claims for indemnification
under: (i) clause (1) of Section 7.01(a), to the extent that such
claims relate to breaches of Section 3.01(k), and (ii) clause (5) of
Section 7.01(a). Environmental Claims shall not be payable in any
event with respect to Losses directly or indirectly incurred by
Purchaser that do not in the aggregate exceed the Initial
Environmental Liability.
(3) "NON-ENVIRONMENTAL CLAIMS" means claims for
indemnification under: (i) clause (1) of Section 7.01(a), except to
the extent that such claims relate to breaches of Section 3.01(k), and
(ii) clause (2) of Section 7.01(a). Non-Environmental Claims shall
not be payable in any event with respect to Losses directly or
indirectly incurred by Purchaser that do not exceed in the aggregate
(x) $500,000 LESS (y) one-half of the Initial Environmental Liability.
(4) After the fifth anniversary of the Closing Date,
Seller's liability for Environmental Claims shall be: (A) restricted
to those Environmental Claims that arise out of a claim, action, suit
or proceeding alleged or asserted by any non-affiliated third party
against a Purchaser's Indemnified Person, and (B) limited, as to each
Environmental Claim that is first asserted by the Purchaser during any
of the following one-year periods, to the following percentages of the
full amount of the Losses relating to such Environmental Claims: (i)
the one-year period ending on the sixth anniversary of the Closing
Date: 83.33%, (ii) the one-year period ending on the seventh
anniversary of the Closing Date: 66.67%, (iii) the one-year period
ending on the eighth anniversary of the Closing Date: 50.00%, (iv) the
one-year period ending on the ninth anniversary of the Closing Date:
33.33%, and (v) the one-year period ending on the tenth anniversary of
the Closing Date: 16.67%.
(5) (A) Seller's liability for claims under this Section
7.01 (except to the extent that such claims relate to breaches of
Section 3.01(o) and 3.01(p) hereof) shall not exceed $17,500,000 (as
adjusted pursuant to Section 5.01(m)), and (B) Seller's liability for
claims under this Section 7.01 relating to breaches of Section 3.01(o)
and 3.01(p) hereof shall not exceed
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the Purchase Price (as adjusted pursuant to Section 2.02); PROVIDED,
HOWEVER, that in no event shall Seller's liability for claims (of any
description) under this Section 7.01 exceed the Purchase Price (as
adjusted pursuant to Section 2.02).
(6) LOSSES OF SALTS AND I/ARIZONA. Seller's
indemnification of Purchaser hereunder for the Losses of SALTS and
I/Arizona shall be limited to 50% and 70%, respectively; PROVIDED,
HOWEVER, that if (i) SALTS and the other owner(s) thereof are
insolvent Seller will further indemnify Purchaser if Purchaser is
required to pay more than 50% of such Losses, and (ii) I/Arizona and
the other owner(s) thereof are insolvent Seller will indemnify
Purchaser if Purchaser is required to pay more than 70% of such
Losses; PROVIDED FURTHER, HOWEVER, that the foregoing proviso shall
not apply to the extent that Purchaser or any affiliate thereof shall
be the owner of more than 50% of SALTS (in the case of clause (i)) or
more than 70% of I/Arizona (in the case of clause (ii)).
7.02. BY PURCHASER. (a) Subject to the limitations set forth below in
this Section 7.02, from and after the Closing Date, Purchaser shall indemnify
the Seller's Indemnified Persons against, and hold the Seller's Indemnified
Persons harmless from, any and all Losses directly or indirectly incurred,
suffered, sustained or required to be paid by, or sought to be imposed upon, any
of the Seller's Indemnified Persons resulting from, relating to or arising out
of:
(1) any breach as of the Closing Date of any of the
representations or warranties of Purchaser set forth in Section 3.02
hereof,
(2) any breach of any covenant or agreement made by
Purchaser under this Agreement,
(3) any obligation that arises from an event that occurs,
or circumstance that arises, after the Closing Date involving any of
the Purchaser's Indemnified Persons.
(b) The right to indemnification under this Section 7.02 is subject
to the following limitations:
(1) The indemnification rights under this Section 7.02
shall expire at the respective times set forth in Section 7.05, and
Purchaser shall have no liability under this Section 7.02 or otherwise
in connection with the transactions contemplated by this Agreement
unless a Seller's Indemnified Person gives written notice to Purchaser
asserting a claim for Losses, including reasonably detailed specific
facts and circumstances pertaining thereto, before the expiration of
the periods of time that the underlying representations, warranties,
covenants and agreements survive under Section 7.05 hereof.
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(2) Indemnification for claims under this Section 7.02
shall be payable hereunder only if and to the extent that the
aggregate amount of all Losses of the Seller's Indemnified Persons to
which this Section 7.02 hereof applies shall exceed $500,000, and
shall not be payable in any event with respect to the first $500,000
of such Losses.
(3) Purchaser's liability for all claims under this Section
7.02 shall not exceed $17,500,000.
7.03. "LOSSES" DEFINED. In this Agreement, the term "LOSSES" means and
includes all losses, claims, damages, judgments, liabilities, payments,
obligations, costs and expenses (including, without limitation, any reasonable
legal fees and costs and expenses incurred after the Closing Date in defense of
or in connection with any alleged or asserted liability, payment or obligation
as to which indemnification may apply hereunder), regardless of whether or not
any liability, payment, obligation or judgment is ultimately imposed against the
Purchaser's Indemnified Persons or Seller's Indemnified Persons and whether or
not the Purchaser's Indemnified Persons or Seller's Indemnified Persons are made
or become parties to an action, suit or proceeding in respect thereof,
voluntarily or involuntarily.
7.04. NOTICE OF CLAIMS. With respect to any matter as to which any
person or entity (the "INDEMNIFIED PERSON") is entitled to indemnification from
any other person or entity (the "INDEMNIFYING PERSON") under this Article VII,
the Indemnified Person shall have the right, but not the obligation, to contest,
defend or litigate, and to retain counsel of its choice in connection with, any
claim, action, suit or proceeding by any third party alleged or asserted against
the Indemnified Person in respect of, resulting from, relating to or arising out
of such matter, and the costs and expenses thereof shall be subject to the
indemnification obligations of the Indemnifying Person hereunder; PROVIDED,
HOWEVER, that if the Indemnifying Person acknowledges in writing its obligation
to indemnify the Indemnified Person in respect of such matter to the fullest
extent provided by this Article VII, the Indemnifying Person shall be entitled,
at its option, to assume and control the defense of such claim, action, suit or
proceeding at its expense through counsel reasonably acceptable to the
Indemnified Person of its choice if it gives prompt notice of its intention to
do so to the Indemnified Person. Neither an Indemnified Person nor an
Indemnifying Person shall be entitled to settle or compromise any such claim,
action, suit or proceeding without the prior written consent of the other party
hereto (and for purposes of this provision the "other party hereto" shall be:
(i) Purchaser, for any Indemnified Person or Indemnifying Person who is a
Seller's Indemnified Person, and (ii) Seller, for Purchaser, which consent shall
not be unreasonably withheld.
7.05. SURVIVAL OF PROVISIONS. (a) All representations and warranties
contained herein or made pursuant to this Agreement shall survive the Closing
until (but excluding) the date that is eighteen months after the Closing Date,
except that the representations and warranties contained in or made pursuant to
(i) Sections 3.01(o) and 3.01(p) shall survive the Closing without limitation,
(ii) Section 3.01(k) shall survive the Closing until (but excluding) the tenth
anniversary of the Closing Date (subject to Section 7.01(b)(4) hereof), (iii)
Section 3.01(h) shall survive the Closing until (but excluding) the fifth
anniversary of the
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Closing Date, and (iv) Section 3.01(i) shall survive the Closing until (but
excluding) the sixth anniversary of the Closing Date.
(b) All covenants and agreements of the parties contained in or made
pursuant to this Agreement and required to be performed prior to the Closing
Date shall not survive the Closing and shall be deemed to have been waived by
the party for whose benefit the covenant or agreement exists. All other
covenants and agreements contained in or made pursuant to this Agreement
(including Section 7.01 and 7.02) shall survive the Closing for so long as any
claim may be made in respect of such matters under any applicable statute of
limitations, except that Sections 7.01(a)(4) and (5) shall survive the Closing
until (but excluding) the tenth anniversary of the Closing Date (subject to
Section 7.01(b)(4) hereof). This Section 7.05 shall survive the Closing without
limitation.
7.06. NO PUNITIVE DAMAGES. Notwithstanding anything to the contrary
set forth in this Agreement, no party hereto shall have any liability to any
other party hereto, Purchaser or any of Seller's Indemnified Persons for any
punitive, consequential or special damages by virtue of any breach of any
representation, warranty, covenant or agreement in or pursuant to this
Agreement, any Seller Document or Purchaser Document or any other agreement,
document or instrument executed and delivered pursuant hereto or in connection
herewith or the Closing; PROVIDED that the foregoing shall not be deemed to
limit the obligation of any party hereunder to indemnify for Losses constituting
punitive, consequential or special damages awarded to any third-party claimant.
7.07. EXCLUSIVE REMEDY. Each party hereto agrees that the sole
liability of any other party hereto for any claim with respect to the
transactions contemplated under this Agreement from and after the Closing Date
shall be limited to indemnification under this Article VII; PROVIDED; HOWEVER,
that the foregoing shall not be deemed to prohibit or restrict the availability
of any equitable remedies (including specific performance) in the event of any
violation or threatened violation of Section 4.08.
ARTICLE VIII
MISCELLANEOUS
8.01. FURTHER ACTIONS. From time to time after the Closing Date, the
parties hereto shall execute and deliver (or cause to be executed and delivered)
such other and further documents and instruments and shall take (or cause to be
taken) such other and further actions, as any other party hereto may reasonably
request in order to further effect and/or evidence the transactions contemplated
hereby or to otherwise consummate and give effect to the covenants and
agreements set forth herein.
8.02. BROKERS. Seller shall indemnify Purchaser against, and hold
Purchaser harmless from, at all times after the date hereof, any and all Losses
resulting from, relating to or arising out of any agreement, arrangement or
undertaking made or alleged to have been made by Seller, IMSAMET or any officer,
director, employee, agent, representative or affiliate of Seller, and/or IMSAMET
with any third party for brokerage or finder fees or other commissions in
connection with this Agreement or the transactions contemplated hereby or
thereby. Purchaser shall indemnify Seller against, and hold Seller harmless
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<PAGE>
from, at all times after the date hereof, any and all Losses resulting from,
relating to or arising out of any agreement, arrangement or undertaking made or
alleged to have been made by Purchaser or any officer, director, employee,
agent, representative or affiliate of Purchaser with any third party for
brokerage or finder fees or other commissions in connection with this Agreement
or the transactions contemplated hereby or thereby. Seller shall be responsible
to pay the fees and expenses of Morgan Stanley & Co. Incorporated.
8.03. EXPENSES. Seller shall bear its and the Companies' legal fees,
appraisal fees, investment banking fees and other costs and expenses with
respect to the negotiation, execution and the delivery of this Agreement and the
consummation of the transactions hereunder. Purchaser shall bear its own legal
fees, appraisal fees, investment banking fees and other costs and expenses with
respect to the negotiation, execution and the delivery of this Agreement and the
consummation of the transactions hereunder. Seller shall pay any and all sales,
transfer and documentary stamp taxes and other expenses incident to the transfer
of the Shares.
8.04. ENTIRE AGREEMENT. This Agreement, which includes the Exhibits
hereto and the Disclosure Schedule, and the other Seller Documents and Purchaser
Documents and the confidentiality agreement, dated August 28, 1996 between
Purchaser and Seller contain the entire agreement among IMSAMET, Seller and
Purchaser with respect to the subject matter hereof and thereof, and supersede
all prior agreements, arrangements and understandings with respect thereto.
8.05. DESCRIPTIVE HEADINGS; REFERENCES. The descriptive headings of
this Agreement and other Seller Documents and Purchaser Documents are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision hereof or thereof. Article, Section and Exhibit
references in this Agreement are to the referenced Articles and Sections of and
Exhibits to, this Agreement, unless the context otherwise requires. Schedule
reference in this Agreement are to the referenced Schedules in the Disclosure
Schedule, unless the context otherwise requires.
8.06. NOTICES. Any notice or other communication which is required or
permitted hereunder or under any other Seller Document or Purchaser Document
shall be in writing and shall be deemed to have been delivered and received (x)
on the day of (or, if not a business day, the first business day after) its
having been personally delivered or telecopied to the following address or
telecopy number, (y) on the first business day after its having been sent by
overnight delivery service to the following address, or (z) if sent by regular,
registered or certified mail, when actually received at the following address:
If to Purchaser or (after the Closing) IMSAMET:
IMCO Recycling Inc.
Central Tower at William Square
5215 North O'Connor Boulevard, Suite 940
Irving, Texas 75039
ATTENTION: Frank H. Romanelli
Telecopier No. (972) 869-6556
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Telephone No. (972) 869-6575
with a copy to:
Haynes and Boone, LLP
901 Main Street
Dallas, Texas 75202
ATTENTION: David H. Oden, Esq.
Telecopier No. (214) 651-5940
Telephone No. (214) 651-5560
If to Seller or (prior to the Closing) IMSAMET:
EnviroSource, Inc.
1155 Business Center Drive
Horsham, Pennsylvania 19044-3454
ATTENTION: Leon Z. Heller
Telecopier No. (215) 956-5424
Telephone No. (215) 956-5500
and (prior to the Closing):
IMSAMET, Inc.
505 East Plaza Circle, Suite D,
Litchfield Park, Arizona 85340
ATTENTION: George E. Fuehrer
Telecopier No. (602) 935-6406
Telephone No. (602) 935-6330
with a copy to (if on or prior to 18 months after the Closing Date):
Dechert Price & Rhoads
477 Madison Avenue
New York, New York 10022
ATTENTION: Claude A. Baum, Esq.
Telecopier No. (212) 308-2041
Telephone No. (212) 326-3576
Any party may by notice change the address or telecopier number to which notices
or other communications to it are to be delivered, telecopied or sent.
8.07. GOVERNING LAW AND FORUM. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (other than the
choice of law principles thereof), except that any representations and
warranties with respect to real or tangible personal property shall be governed
by and construed in accordance with the laws of the jurisdiction where such
property is situated if other than in the State of Delaware. Any claim, action,
suit or other proceeding initiated by any of the Seller's
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<PAGE>
Indemnified Persons against Purchaser, or by any of the Purchaser's
Indemnified Persons against Seller, under or in connection with this
Agreement or any Seller Document or Purchaser Document shall exclusively be
asserted, brought, prosecuted and maintained in any federal or state court in
the State of Delaware, as the party bringing such action, suit or proceeding
shall elect, having jurisdiction over the subject matter thereof, and Seller
and Purchaser hereby irrevocably (i) submit to the jurisdiction of such
courts, (ii) waive any and all rights to object to the laying of venue in any
such court, (iii) waive any and all rights to claim that any such court may
be an inconvenient forum, and (iv) agree that service of process on them in
any such action, suit or proceeding may be effected by the means by which
notices may be given to it under this Agreement.
8.08. ASSIGNMENT. This Agreement, and the respective rights and
obligations of the parties hereunder, may not be assigned or delegated otherwise
than by operation of law (x) by Purchaser or (after the Closing) IMSAMET without
the prior written consent of Seller or (y) by Seller or (prior to the Closing)
IMSAMET without the prior written consent of Purchaser, and any purported
assignment or delegation by any party hereto in violation of the foregoing shall
be void AB INITIO; PROVIDED, HOWEVER, that any or all rights of any party to
receive the performance of the obligations of the other parties hereunder (but
not any obligations of any party hereunder) and rights to assert claims against
the other parties in respect of breaches of representations, warranties or
covenants may be assigned to any entity extending credit to such party or any of
its affiliates, but any assignee of such rights shall take such rights subject
to any defenses, counterclaims and rights of set-off to which the non-assigning
parties might be entitled under this Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors, and permitted assigns.
8.09. REMEDIES. Purchaser and Seller acknowledge that any violation or
threatened violation of Section 4.08 hereof will cause irreparable injury to the
other party and that the remedy at law for any such violation or threatened
violation will be inadequate. Purchaser and Seller agree that the other party
shall be entitled to temporary and permanent injunctive relief for any such
violation or threatened violation without the necessity of proving (i) that the
other party will be irreparably injured thereby, (ii) that the remedy at law for
such violation or threatened violation is inadequate or (iii) actual damages.
8.10. WAIVERS AND AMENDMENTS. Any waiver of any term or condition of
this Agreement, or any amendment or supplementation of this Agreement, shall be
effective only if in a writing executed by each of the parties hereto. A waiver
of any breach or failure to enforce any of the terms or conditions of this
Agreement shall not in any way affect, limit or waive a party's rights hereunder
at any time to enforce strict compliance thereafter with every term or condition
of this Agreement.
8.11. THIRD PARTY RIGHTS. Notwithstanding any other provision of this
Agreement, and except as expressly provided in Article VII or as permitted
pursuant to Section 8.08 hereof, this Agreement and the other Seller Documents
and Purchaser Documents shall not create benefits on behalf of any employee,
agent or representative of IMSAMET or any other person or entity not party
hereto (including, without limitation, any accountant, broker
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<PAGE>
or finder, notwithstanding the provisions of Section 8.02), and this
Agreement shall be effective only as between the parties hereto, their
successors, and permitted assigns.
8.12. ILLEGALITIES. In the event that any provision contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect, and the remaining provisions of this
Agreement, shall not, at the election of the party for whose benefit the
provision exists, be in any way impaired.
8.13. NATURE OF THE TRANSACTION. (a) Purchaser and Seller agree that
the Purchase and Sale hereunder is a purchase of a business in its entirety as a
going concern to be directed and operated by the Purchaser, and not an
investment in securities although the transaction will be effectuated by a sale
of the Shares for purposes of convenience and tax planning.
(b) For purposes of the Securities Act Purchaser hereby acknowledges
its understanding that the Shares are not registered under the Securities Act,
or registered or qualified under any Blue Sky Laws, on the grounds that the
offering, sale, issuance and delivery thereof is exempt from the registration
and/or qualification requirements thereof, and that Seller's reliance on such
exemption is predicated in part on the following covenants, agreements and
acknowledgments of Purchaser. Purchaser hereby represents and warrants to and
covenants and agrees with Seller that Purchaser: (i) is acquiring the Shares
for its own account for investment purposes only, with no present intention of
offering, selling, transferring, distributing or otherwise disposing of the
same, any part thereof or any interest therein (subject, nevertheless, to any
requirement of law that the disposition of its securities shall at all times be
within its control), and (ii) will not offer, sell, transfer, distribute or
otherwise dispose of the Shares except in compliance with the Securities Act and
all applicable Blue Sky Laws.
8.14. PUBLIC ANNOUNCEMENTS. No party hereto shall make any
Announcement to which the other parties hereto shall reasonably object, however,
Seller and Purchaser will be required under the Exchange Act to report this
Agreement and the transactions contemplated hereby, and such reporting shall be
permitted in all events. Each party shall afford the other parties hereto the
opportunity to review and comment upon each Announcement proposed to be made by
it prior to the release thereof.
8.15. GENDER AND PLURAL TERMS. Words of gender or neuter may be read
as masculine, feminine or neuter, as required by the context. Singular and
plural forms of defined and other terms herein may be read as singular or
plural, as required or permitted by the context.
8.16. LICENSE OF LOGO. Purchaser acknowledges its understanding (as
disclosed in SCHEDULE 3.01(f)) that the rights to the "IMSAMET" logo (I.E., the
"IMSAMET" name superimposed on a stylized globe that is also used in the IMS
logo) (the "IMSAMET LOGO") is not owned by any Company, but is rather informally
licensed by the Companies from Seller or IMS. Seller, for itself and IMS,
hereby grants to the Companies, for a period of six months after the Closing
Date, the right to use the IMSAMET Logo in connection with
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the business locations and operations of the Companies as they exist on the
Closing Date; PROVIDED that the license hereby granted shall remain in effect
only for so long as the Companies maintain the quality of products and
services provided by such locations and operations at a level at or above
that presently provided by the Companies.
8.17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
[the remainder of this page is intentionally blank]
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<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
PURCHASER: SELLER:
IMCO RECYCLING INC. ENVIROSOURCE, INC.
By: /s/ FRANK H. ROMANELLI By: /s/ GEORGE E. FUEHRER
------------------------- -------------------------
Name: Frank H. Romanelli Name: George E. Fuehrer
Title: President and CEO Title: Senior Vice President
IMSAMET:
IMSAMET, INC.
By: /s/ GEORGE E. FUEHRER
-------------------------
Name: George E. Fuehrer
Title: President
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<PAGE>
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
This Amendment No. 1 to the Stock Purchase Agreement, dated November 26,
1996 (the "Stock Purchase Agreement"), by and among IMCO Recycling Inc., a
Delaware corporation ("Purchaser"), IMSAMET, Inc., a Delaware corporation
("IMSAMET"), and EnviroSource, Inc., a Delaware corporation ("Seller"), is made
by and among Purchaser, IMSAMET and Seller as of the 21st day of January, 1997.
Capitalized terms used but not defined herein have the meanings ascribed to
them in the Stock Purchase Agreement.
W I T N E S S E T H
WHEREAS, Purchaser, IMSAMET and Seller have entered into the Stock
Purchase Agreement;
WHEREAS, the closing of the transactions contemplated by the Stock
Purchase Agreement will occur today, January 21, 1997 (the "Closing Date");
WHEREAS, the parties to the Stock Purchase Agreement desire to make the
purchase and sale of the Shares contemplated by the Stock Purchase Agreement
effective as of January 1, 1997;
WHEREAS, Seller is willing to indemnify Purchaser against certain
liabilities under the Multiemployer Pension Plan Amendments of 1980 ("MPPAA");
WHEREAS, the parties to the Stock Purchase Agreement wish to amend certain
environmental-related provisions of the Stock Purchase Agreement; and
WHEREAS, the parties to the Stock Purchase Agreement wish to memorialize
certain agreements and arrangements among them in connection with the
conditions set forth in Section 5.01(c) and 5.02(c) of the Stock Purchase
Agreement and certain tax-related elections;
NOW, THEREFORE, Purchaser, IMSAMET and Seller hereby agree as follows:
A. EFFECTIVE DATE OF PURCHASE AND SALE
1. The purchase and sale of the Shares contemplated by the
<PAGE>
Stock Purchase Agreement shall be effective as of January 1, 1997 and
Purchaser shall be entitled to all profits and losses of IMSAMET on
and after January 1, 1997.
2. The definition in Article I of the Stock Purchase Agreement "Closing
Balance Sheet" is hereby amended by deleting from the first sentence
thereof the terms "the day before the Closing Date" and inserting in
lieu thereof the terms "December 31, 1996".
3. In addition to the Adjustment of the Purchase Price pursuant to
Section 2.02 of the Stock Purchase Agreement, there shall be the
following further adjustment:
(a) To the extent that any payment or distribution of cash is
made by IMSAMET to Seller or any subsidiary of Seller other than
the Companies or SALTS during the period commencing on January 1,
1997 and ending on the Closing Date (the "Interim Period"), the
Purchase Price shall be reduced by such amount.
(b) To the extent that any payment or distribution of cash is
made by Seller or any subsidiary of Seller other than the
Companies or SALTS to IMSAMET during the Interim Period, the
Purchase Price shall be increased by such amount.
Such an addition or subtraction from the Purchase Price shall be
made a part of the Closing Adjustment procedure contemplated by
Section 2.02 of the Stock Purchase Agreement.
B. MPPAA INDEMNIFICATION
4. Article I of the Stock Purchase Agreement is hereby amended by adding
the following definition (in the appropriate alphabetical position):
"'MPPAA CLAIMS' means any and all Losses directly
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<PAGE>
or indirectly incurred, suffered, sustained or required to be
paid by, or sought to be imposed upon Purchaser, including
Purchaser's share of Losses incurred, suffered, sustained or
required to be paid by, or sought to be imposed upon any of
Purchaser's Indemnified Persons, resulting from, relating to or
arising out of claims based on liabilities under the
Multiemployer Pension Plan Amendments of 1980 of P-I-E
Nationwide, Inc. (a former subsidiary of a corporation acquired
by Seller)."
5. Section 7.01(a) of the Stock Purchase Agreement is hereby amended by:
(i) deleting the word "and" at the end of Section 7.01(a)(5), (ii)
deleting the period and adding ", and" at the end of Section
7.01(a)(6), (iii) adding the following new clause (7) at the end of
Section 7.01(a):
"(7) any MPPAA Claims."
6. Section 7.01(b)(3) is hereby amended by deleting it in its entirety
and by replacing it with the following:
"(3) 'NON-ENVIRONMENTAL CLAIMS' means claims for indemnification
under: (i) clause (1) of Section 7.01(a), except to the extent
that such claims relate to breaches of Section 3.01(k), (ii)
clause (2) of Section 7.01(a), and (iii) clause (7) of Section
7.01(a). Non-Environmental Claims shall not be payable in any
event with respect to Losses directly or indirectly incurred by
Purchaser that do not exceed in the aggregate (x) $500,000 LESS
(y) one-half of the Initial Environmental Liability."
7. Section 7.01(b)(5) is hereby amended by deleting it in its entirety
and by replacing it with the following:
"(5) (A) Seller's liability for claims under this Section 7.01
(except to the extent that such claims relate to breaches of
Section 3.01(o) and 3.01(p) hereof) shall not exceed $17,500,000
(as
3
<PAGE>
adjusted pursuant to Section 5.01(m)), (B) Seller's liability
for claims under this Section 7.01 relating to breaches of
Section 3.01(o) and 3.01(p) hereof shall not exceed the Purchase
Price (as adjusted pursuant to Section 2.02), and (C) Seller's
liability for claims under this Section 7.01 relating to MPPAA
Claims shall not exceed the Purchase Price (as adjusted pursuant
to Section 2.02); provided, however, that in no event shall
Seller's liability for claims (of any description) under this
Section 7.01 exceed the Purchase Price (as adjusted pursuant to
Section 2.02)."
8. Section 7.05(b) is hereby amended by deleting the penultimate
sentence thereof in its entirety and replacing it with the following:
"All other covenants and agreements contained in or made pursuant
to this Agreement (including Section 7.01 and 7.02) shall survive
the Closing for so long as any claim may be made in respect of
such matters under any applicable statute of limitations, except
that (i) Sections 7.01(a)(4) and (5) shall survive the Closing
until (but excluding) the tenth anniversary of the Closing Date
(subject to Section 7.01(b)(4) hereof) and (ii) Section
7.01(a)(7) shall survive the Closing until (but excluding) the
sixth anniversary of the Closing Date."
9. The Seller agrees that, in connection with any release of the
Seller and/or any of its subsidiaries by any multi-employer plan (or
any trustee or union sponsor thereof) from any actual or potential
claims based on liabilities under MPPAA of P-I-E Nationwide, Inc., it
will use its best efforts to include the Companies (without naming
them specifically in such release).
E. SECTION 338(h)(10) ELECTION
10. From and after the date hereof, the Purchaser and the Seller will
negotiate in good faith in order to reach a
4
<PAGE>
mutually acceptable agreement or arrangement as to whether or not
the Purchaser and/or the Seller (as appropriate) shall make an
election contemplated by Section 338(h)(10) of the Code in connection
with the Purchase and Sale.
F. ENVIRONMENTAL-RELATED AMENDMENTS
11. The last sentence of Section 3.01(k) of the Stock Purchase Agreement
is hereby amended by adding thereto, immediately after the terms
"breaches of this Section 3.01(k)" and immediately before the comma
(",") that appears immediately thereafter, the following:
"(disregarding for the purpose of this definition only, all the terms
appearing after the comma in the first sentence of this Section
3.01(k))".
E. SHAPIRO SETTLEMENT AGREEMENT
11. The Seller and the Purchaser hereby acknowledge that the Agreement,
dated January 16, 1997 by and among Aron Shapiro, Judy Shapiro, Magna
Aluminum Refining Inc., the Seller and the Purchaser serves to settle
the matter disclosed on (updated) Schedule 3.01(g) of the Disclosure
Schedule. As a result of the foregoing (as well as other relevant
facts and circumstances), the Purchaser acknowledges that Section
5.01(c) of the
[the remainder of this page is intentionally blank]
5
<PAGE>
Stock Purchase Agreement is satisfied and the Seller acknowledges
that Section 5.02(c) of the Stock Purchase Agreement is satisfied.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 to
the Stock Purchase Agreement as of January 21, 1997.
ENVIROSOURCE, INC.
By: /s/ GEORGE E. FUEHRER
------------------------------
Name: George E. Fuehrer
Title: Senior Vice President
IMSAMET, INC.
By: /s/ GEORGE E. FUEHRER
------------------------------
Name: George E. Fuehrer
Title: Senior Vice President
IMCO RECYCLING INC.
By: /s/ FRANK H. ROMANELLI
------------------------------
Name: Frank H. Romanelli
Title: President and CEO
6
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
IMCO RECYCLING INC.,
as Borrower
and
SUBSIDIARY GUARANTORS
-----------------------
CREDIT AGREEMENT
Dated as of January 21, 1997
-----------------------
MERRILL LYNCH & CO.,
as Arranger and Syndication Agent
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Administrative Agent
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
----
Section 1. Definitions and Accounting Matters............................. 1
1.01 Certain Defined Terms........................................... 1
1.02 Accounting Terms and Determinations............................. 26
1.03 Classes and Types of Loans...................................... 26
1.04 Rules of Construction........................................... 26
Section 2. Commitments, Loans, Notes and Prepayments...................... 27
2.01 Loans........................................................... 27
2.02 Borrowings...................................................... 28
2.03 Letters of Credit............................................... 28
2.04 Termination and Reductions of Commitments....................... 33
2.05 Fees............................................................ 33
2.06 Lending Offices................................................. 34
2.07 Several Obligations............................................. 34
2.08 Notes; Register................................................. 34
2.09 Optional Prepayments and Conversions or Continuations of Loans... 35
2.10 Mandatory Prepayments............................................ 35
Section 3. Payments of Principal and Interest............................. 38
3.01 Repayment of Loans.............................................. 38
3.02 Interest........................................................ 38
Section 4. Payments; PRO RATA Treatment; Computations; Etc. .............. 39
4.01 Payments........................................................ 39
4.02 PRO RATA Treatment.............................................. 40
4.03 Computations.................................................... 40
4.04 Minimum Amounts................................................. 40
4.05 Certain Notices................................................. 41
4.06 Non-Receipt of Funds by the Administrative Agent................ 41
4.07 Right of Setoff; Sharing of Payments, Etc. ..................... 42
Section 5. Yield Protection, Etc. ........................................ 43
5.01 Additional Costs................................................ 43
5.02 Limitation on Types of Loans.................................... 45
5.03 Illegality...................................................... 45
5.04 Treatment of Affected Loans..................................... 46
5.05 Compensation.................................................... 46
5.06 Net Payments.................................................... 47
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Page
----
5.07 Replacement of Lender............................................ 49
Section 6. Guarantee...................................................... 49
6.01 The Guarantee................................................... 49
6.02 Obligations Unconditional....................................... 50
6.03 Reinstatement................................................... 51
6.04 Subrogation; Subordination...................................... 51
6.05 Remedies........................................................ 52
6.06 Instrument for the Payment of Money............................. 52
6.07 Continuing Guarantee............................................ 52
6.08 General Limitation on Guarantee Obligations..................... 52
Section 7. Conditions Precedent........................................... 52
7.01 Initial Extension of Credit..................................... 52
7.02 Initial and Subsequent Extensions of Credit..................... 58
Section 8. Representations and Warranties................................. 59
8.01 Corporate Existence............................................. 59
8.02 Financial Condition; Etc. ...................................... 59
8.03 Litigation...................................................... 61
8.04 No Breach; No Default........................................... 61
8.05 Action.......................................................... 61
8.06 Approvals....................................................... 61
8.07 ERISA........................................................... 62
8.08 Taxes........................................................... 62
8.09 Investment Company Act; Public Utility Holding Company Act;
Other Restrictions............................................. 62
8.10 No Burdensome Restrictions...................................... 62
8.11 Capitalization.................................................. 63
8.12 Environmental Matters........................................... 63
8.13 Use of Proceeds................................................. 63
8.14 Subsidiaries.................................................... 64
8.15 Properties...................................................... 64
8.16 Security Interest............................................... 64
8.17 Compliance with Laws............................................ 64
8.18 True and Complete Disclosure.................................... 65
8.19 Solvency........................................................ 65
8.20 Employee and Labor Matters...................................... 65
8.21 Intellectual Property........................................... 65
8.22 Representations and Warranties in Documents..................... 66
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Section 9. Covenants...................................................... 66
9.01 Financial Statements, Etc. ..................................... 66
9.02 Litigation, Etc. ............................................... 68
9.03 Existence; Compliance with Law; Payment of Taxes; Inspection
Rights; Performance of Obligations; Etc. ...................... 69
9.04 Insurance....................................................... 69
9.05 Issuance or Disposals of Capital Stock of Subsidiaries.......... 70
9.06 Fundamental Changes; Acquisitions; Dispositions................. 70
9.07 Liens and Related Matters....................................... 72
9.08 Indebtedness.................................................... 74
9.09 Investments..................................................... 75
9.10 Dividend Payments............................................... 79
9.11 Financial Covenants............................................. 79
9.12 Pledge of Additional Collateral................................. 80
9.13 Security Interests.............................................. 81
9.14 Compliance with Environmental Laws.............................. 81
9.15 Lines of Business............................................... 82
9.16 Transactions with Affiliates.................................... 82
9.17 Limitation on Accounting Changes; Limitation on Investment
Company Status................................................. 82
9.18 Modifications of Certain Documents, Etc. ....................... 82
9.19 Interest Rate Protection Agreements............................. 82
9.20 Limitation on Certain Restrictions Affecting Subsidiaries....... 82
9.21 Additional Obligors............................................. 83
9.22 Restriction on Leases........................................... 83
9.23 Sale or Discount of Receivables................................. 83
9.24 Contingent Obligations.......................................... 83
9.25 Joinder by Subsidiaries......................................... 84
9.26 Post Closing Obligations........................................ 84
Section 10. Events of Default............................................. 86
Section 11. The Administrative Agent...................................... 89
11.01 Appointment, Powers and Immunities............................. 89
11.02 Reliance by Administrative Agent............................... 90
11.03 Defaults....................................................... 90
11.04 Rights as a Lender............................................. 91
11.05 Indemnification................................................ 91
11.06 Non-Reliance on Administrative Agent, Arranger and Other
Lenders....................................................... 92
11.07 Failure to Act................................................. 92
11.08 Resignation or Removal of Administrative Agent................. 92
11.09 Consents Under Other Basic Documents........................... 93
11.10 Collateral Sub-Agents.......................................... 93
11.11 Exculpatory Provisions......................................... 93
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Section 12. Miscellaneous................................................. 93
12.01 Waiver......................................................... 93
12.02 Notices........................................................ 93
12.03 Expenses, Etc. ................................................ 94
12.04 Amendments, Etc. .............................................. 96
12.05 Successors and Assigns......................................... 96
12.06 Assignments and Participations................................. 97
12.07 Survival....................................................... 99
12.08 Captions....................................................... 99
12.09 Counterparts................................................... 99
12.10 Governing Law; Submission to Jurisdiction; Waivers; Etc. ...... 99
12.11 Confidentiality................................................ 100
12.12 Independence of Representations, Warranties and Covenants...... 100
12.13 Severability................................................... 100
12.14 Prior Understandings........................................... 100
12.15 Acknowledgements............................................... 100
Signatures................................................................. S-1
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<PAGE>
ANNEX A - Commitments
ANNEX B - Existing Letters of Credit
SCHEDULE 1.01(a) - Subsidiary Guarantors
SCHEDULE 1.01(b) - Mortgaged Real Property
SCHEDULE 1.01(c) - Title Companies
SCHEDULE 7.01(i) - Indebtedness to Be Repaid on the Closing Date
SCHEDULE 8.02 - Certain Contingent Obligations
SCHEDULE 8.03 - Litigation
SCHEDULE 8.06 - Certain Approvals
SCHEDULE 8.12 - Environmental Matters
SCHEDULE 8.14 - Subsidiaries of Borrower
SCHEDULE 8.20 - Labor Matters
SCHEDULE 9.07 - Certain Existing Liens
SCHEDULE 9.08 - Certain Indebtedness to Remain
Outstanding
SCHEDULE 9.09 - Investments
SCHEDULE 9.26 - Post-Closing Lien Searches
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Term Loan Note
EXHIBIT B - [Intentionally Omitted]
EXHIBIT C - Form of Interest Rate Certificate
EXHIBIT D - Form of Security Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT E-2 - Form of Local Counsel Opinion
EXHIBIT F - Form of Notice of Assignment
EXHIBIT G - Form of Mortgage
EXHIBIT H - Form of Section 5.06 Certificate
EXHIBIT I - Form of Notice of Borrowing
EXHIBIT J - Form of Notice of Conversion/Continuation
EXHIBIT K - Form of Joinder Agreement
-v-
<PAGE>
CREDIT AGREEMENT dated as of January 21, 1997 among: IMCO
RECYCLING INC., a Delaware corporation ("BORROWER," which term shall include
its successors and assigns); the Subsidiary Guarantors named herein; each of
the lenders that is a signatory hereto identified under the caption "LENDERS"
on the signature pages hereto or that, pursuant to Section 12.06(b), shall
become a "Lender" hereunder (individually, a "LENDER" and, collectively, the
"LENDERS"); MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as arranger and syndication agent (in such capacities, together
with its successors in such capacities, the "ARRANGER"); and TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the "ADMINISTRATIVE
AGENT").
The parties hereto agree as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings:
"ACQUISITION" means any transaction or series of related
transactions for the direct or indirect (a) acquisition of all or
substantially all of the Property of a Person, or of any business or division
of a Person, (b) acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person.
"ADDITIONAL COLLATERAL" see Section 9.12.
"ADJUSTED NET INCOME" shall mean, for any Measurement Period, the
consolidated net income (loss) of Borrower and its Consolidated Subsidiaries
calculated on a consolidated basis in accordance with GAAP, adjusted by
excluding (to the extent taken into account in the calculation of such
consolidated net income (loss)) the effect of (a) gains for such period from
Dispositions (including Excluded Dispositions), other than the Disposition of
inventory and equipment in the ordinary course of business, and the tax
consequences thereof, (b) any non-recurring or extraordinary items of income
and the non-cash portion of any extraordinary item of expense for such
period, (c) the portion of net income (loss) of any Person (other than a
Subsidiary) in which Borrower or any Subsidiary has an ownership interest,
except to the extent of the amount of cash dividends or other cash
distributions actually paid to Borrower or (subject to clause (e) below) any
Subsidiary during such period, (d) the net income (loss) of any Person
combined with Borrower or any Subsidiary on a "pooling of interests" basis
attributable to any period prior to the date of combination and (e) the net
income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distribution by such Subsidiary was not for the relevant
period permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to such Subsidiary or its stockholders.
<PAGE>
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"ADMINISTRATIVE AGENT" see the introduction to this Agreement.
"ADMINISTRATIVE AGENT'S FEE LETTER" shall mean the Fee Letter dated
January , 1997, by and between Texas Commerce Bank National Association and
Borrower.
"ADVANCE DATE" see Section 4.06.
"AFFILIATE" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member
of the immediate family (including parents, spouse and children) of such
individual and any trust whose principal beneficiary is such individual or
one or more members of such immediate family and any Person who is controlled
by any such member or trust. As used in this definition, "CONTROL"
(including, with its correlative meanings, "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise); PROVIDED, HOWEVER, that, in any event, any Person
which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing body
of a corporation or 10% or more of the partnership or other ownership
interests of any other Person (other than as a limited partner or
non-managing member of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, solely for
purposes of Section 9.16, Borrower shall not be deemed an Affiliate of any
Subsidiary and no Wholly Owned Subsidiary shall be deemed an Affiliate of any
other Wholly Owned Subsidiary or Borrower.
"AFFILIATE TRANSACTION" see Section 9.16.
"AGENT" means any of the Arranger and the Administrative Agent.
"AGREEMENT" shall mean this Credit Agreement, as amended from time to
time.
"ALCHEM OPTION" shall mean that certain Operating Agreement among
IMCO Recycling of Michigan L.L.C. and Alchem Aluminum, Inc. dated as of
October 26, 1995, as such agreement may be amended and in effect from time to
time in accordance with its terms and this Agreement.
"ALTERNATE BASE RATE" shall mean for any day, a rate PER ANNUM that
is the higher of (i) the Federal Funds Rate, PLUS 0.50% or (ii) the Prime Rate.
"ALTERNATE BASE RATE LOANS" shall mean Loans that bear interest at
rates based upon the Alternate Base Rate.
"AMORTIZATION PAYMENT" shall mean each scheduled installment of
payments on the Term Loans as set forth in Section 3.01(b).
<PAGE>
-3-
"APPLICABLE COMMITMENT FEE PERCENTAGE" shall mean 0.375%; PROVIDED,
HOWEVER, that from and after the close of Borrower's fiscal quarter ended
June 30, 1997, the Applicable Commitment Fee Percentage shall be, when the
Leverage Ratio at the end of the most recent fiscal quarter ending after such
date is as set forth below, the percentage PER ANNUM set forth opposite such
Leverage Ratio below:
---------------------------------------------------------------
APPLICABLE
LEVERAGE RATIO COMMITMENT FEE PERCENTAGE
---------------------------------------------------------------
GREATER THAN OR EQUAL TO 3.0:1.0 0.375%
---------------------------------------------------------------
GREATER THAN OR EQUAL TO 2.5:1.0
LESS THAN 3.0:1.0 0.375%
---------------------------------------------------------------
GREATER THAN OR EQUAL TO 2.0:1.0
LESS THAN 2.5:1.0 0.25%
---------------------------------------------------------------
LESS THAN 2.0:1.0 0.25%
---------------------------------------------------------------
Any change in the Leverage Ratio shall be effective to adjust the Applicable
Commitment Fee Percentage as of the date of receipt by the Administrative
Agent of the Interest Rate Certificate most recently delivered pursuant to
Section 9.01(e).
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such type of Loan on the signature pages hereof
or such other office of such Lender (or of an Affiliate of such Lender) as
such Lender may from time to time specify to the Administrative Agent and
Borrower as the office by which its Loans of such Type are to be made and
maintained.
"APPLICABLE MARGIN" shall be determined by reference to the following
table:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
ALTERNATE
CLASS OF LOAN BASE RATE LOANS LIBOR LOANS
- ------------------------------------------------------------------------------
Revolving Credit Loans 0.50% 1.50%
- ------------------------------------------------------------------------------
Term Loans 0.50% 1.50%
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
PROVIDED, HOWEVER, that from and after the close of Borrower's fiscal quarter
ended June 30, 1997, the Applicable Margin for Revolving Credit Loans and
Term Loans shall be, when the Leverage Ratio at the end of the most recent
fiscal quarter ending after such date is as set forth below, the percentage
PER ANNUM set forth opposite such Leverage Ratio below:
<PAGE>
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- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
ALTERNATE
LEVERAGE RATIO BASE RATE LOANS LIBOR LOANS
- ------------------------------------------------------------------------------
GREATER THAN OR
EQUAL TO 3.0:1.0 0.75% 1.75%
- ------------------------------------------------------------------------------
GREATER THAN OR
EQUAL TO 2.5:1.0
LESS THAN 3.0:1.0 0.50% 1.50%
- ------------------------------------------------------------------------------
GREATER THAN OR
EQUAL TO 2.0:1.0
LESS THAN 2.5:1.0 0.25% 1.25%
- ------------------------------------------------------------------------------
LESS THAN 2.0:1.0 0.00% 0.75%
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Any change in the Leverage Ratio shall be effective to adjust the Applicable
Margin as of the date of receipt by the Administrative Agent of the Interest
Rate Certificate most recently delivered pursuant to Section 9.01(e).
"ARRANGER" see the introduction to this Agreement.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978.
"BARMET" see the definition of Barmet Option.
"BARMET OPTION" shall mean that certain right of Barmet Aluminum
Corporation, an Ohio Corporation (together with its successors and assigns,
"BARMET") to purchase up to a 49% interest in the aluminum recycling facility
(the "FACILITY") currently operated by IMCO Recycling of Ohio Inc., a
Subsidiary, pursuant to the terms and conditions of that certain Supply
Agreement dated March 2, 1992, by and between Borrower and Barmet (the
"BARMET SUPPLY AGREEMENT"), as such agreement may be amended and in effect
from time to time in accordance with its terms and this Agreement.
"BARMET OPTION ENTITY" means IMCO Recycling of Ohio Inc., a
Subsidiary, or, if pursuant to the exercise of the Barmet Option a new entity
is required to be formed, the legal entity formed pursuant to the terms of
the Barmet Option upon exercise by Barmet of its right to acquire up to a 49%
interest in the Facility.
"BARMET RIGHT OF FIRST REFUSAL" shall mean the Right of First
Refusal dated as of March 2, 1992 by and between Borrower and Barmet, as such
agreement may be amended and in effect from time to time in accordance with
its terms and this Agreement.
"BARMET SUPPLY AGREEMENT" see the definition of Barmet Option.
"BASIC DOCUMENTS" shall mean this Agreement, each Joinder
Agreement, the Notes, the Letter of Credit Documents, the Security Documents
and any Swap Contract with any Lender.
<PAGE>
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"BENEFIT ARRANGEMENT" shall mean at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BORROWER" see the introduction to this Agreement.
"BUSINESS DAY" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City or Houston, Texas and
(b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a Continuation or Conversion of or into, or an
Interest Period for, a LIBOR Loan or a notice by Borrower with respect to any
such borrowing, payment, prepayment, Continuation, Conversion or Interest
Period, that is also a day on which dealings in Dollar deposits are carried
out in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, for any period, any direct or
indirect (by way of acquisition of securities of a Person or the expenditure
of cash or the incurrences of Indebtedness) expenditures in respect of the
purchase or other acquisition of fixed or capital assets, excluding (i)
normal replacement and maintenance programs properly charged to current
operations, (ii) Acquisitions permitted pursuant to Section 9.09(k), (r), (u)
or (y) and (iii) expenditures in an amount not to exceed the Net Available
Proceeds of any Casualty Event or any Taking, Destruction or loss of title
with respect to Real Property in each case to the extent such Net Available
Proceeds are not required to be applied to the prepayment of the Loans in
accordance with Section 2.10(a)(i) or Section 2.10(a)(v), as applicable.
"CAPITAL LEASE," as applied to any Person, shall mean any lease of
any Property by that Person as lessee which, in conformity with GAAP, is
required to be classified and accounted for as a capital lease on the balance
sheet of that Person.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a Capital
Lease, and, for purposes of this Agreement, the amount of such obligations
shall be the capitalized amount thereof, determined in accordance with GAAP.
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of,
such Property for which such Person or any of its Subsidiaries receives
insurance proceeds or proceeds of a condemnation award or other compensation.
Casualty Event shall not include any Taking or Destruction or loss of title
to Real Property.
"CERCLA" see Section 8.12(a)(ii).
"CHANGE IN LAW" shall mean the introduction of any law or
regulation, or any change in law or regulation, or the interpretation or
administration of any law.
<PAGE>
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"CHANGE OF CONTROL" shall mean any transaction or event (including,
without limitation, an issuance, sale or exchange of capital stock, a merger
or consolidation, or a dissolution or liquidation) as a direct or indirect
result of which (i) any Person or any group shall (directly or indirectly)
beneficially own in the aggregate shares of capital stock of Borrower having
33-1/3% or more of the aggregate voting power of all shares of capital stock
of Borrower at the time outstanding, or (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constituted the board of directors of Borrower (together with any new
directors whose election by such board of directors or whose nomination for
election by the shareholders of Borrower was approved by a vote of at least a
majority of the directors of Borrower then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the board of directors of Borrower then in office. For purposes
of this definition, the terms "BENEFICIALLY OWN" and "GROUP" shall have the
respective meanings ascribed to them pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder.
"CLASS" see Section 1.03.
"CLOSING DATE" shall mean the date upon which the initial extension
of credit hereunder is made.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall mean all of the Pledged Collateral and Mortgaged
Real Property.
"COLLATERAL ACCOUNT" see Section 4.01 of the Security Agreement.
"COMMITMENT LETTER" shall mean that certain commitment letter
between Merrill Lynch Capital Corporation and Borrower dated December 5, 1996
together with Exhibit A thereto and incorporated therein.
"COMMITMENTS" shall mean the Revolving Credit Commitments and the
Term Loan Commitments.
"CONSOLIDATED EBITDA" shall mean, for any Measurement Period, the
remainder of (a) the sum (without duplication) of the amounts for such period
of (i) Adjusted Net Income, (ii) income tax expense (including reserves for
deferred taxes not payable currently) to the extent deducted in determining
Adjusted Net Income for such period, (iii) interest expense to the extent
deducted in determining Adjusted Net Income for such period, (iv)
depreciation expense and amortization expense (including, but not limited to,
amortization of intangibles and goodwill) to the extent deducted in
determining Adjusted Net Income for such period and (v) the non-cash
component of any item of expense to the extent deducted in determining
Adjusted Net Income for such period, other than to the extent requiring an
<PAGE>
-7-
accrual or reserve for future cash expenses, MINUS (b) the amount for such
period of interest income to the extent included in determining Adjusted Net
Income for such period, all as determined on a consolidated basis for
Borrower and its Consolidated Subsidiaries. Prior to the first such time as
there shall have been delivered pursuant to Section 9.01 financial statements
of Borrower for four full fiscal quarters of Borrower after the Closing Date,
Consolidated EBITDA for any Measurement Period shall be adjusted on a PRO
FORMA basis consistent with GAAP to give effect to the IMSAMET Acquisition as
if it had occurred on the first day of such Measurement Period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, for
Borrower and its Consolidated Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) all cash interest expense
in respect of Indebtedness during such period (whether or not actually paid
during such period).
"CONSOLIDATED NET WORTH" shall mean at a particular date, all
amounts which would be included under shareholders' equity on a consolidated
balance sheet of Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP as at such date.
"CONSOLIDATED RENTAL PAYMENTS" shall mean, for any period, the
aggregate amount of all rents paid or incurred under all operating leases of
Borrower and its Consolidated Subsidiaries as lessees (net of sublease
income).
"CONSOLIDATED SUBSIDIARY" shall mean, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"CONTINGENT OBLIGATIONS" shall mean, as to any Person, without
duplication, any obligation of such Person guaranteeing or expressly intended
to guarantee by its terms any Indebtedness, leases, dividends or other
obligations ("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, including any
"keep-well" or "make-well" agreement, guarantee of return on equity or other
obligation of such Person and including any obligation of such Person,
whether or not contingent, to (a) purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) advance or
supply funds (i) for the purchase or payment of any such primary obligation
or (ii) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(c) purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise
assure or hold harmless the owner of such primary obligation against loss in
respect thereof; PROVIDED, HOWEVER, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such
<PAGE>
-8-
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person reasonably and
in good faith.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.09 of a LIBOR Loan from one Interest
Period to the next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.09 of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion)
of a Loan from one Applicable Lending Office to another.
"COVERED TAXES" see Section 5.06(a).
"CREDITOR" shall mean any Agent, the Issuing Lender or any Lender.
"DEBT ISSUANCE" shall mean the incurrence by any Borrower or any
Subsidiary of any Indebtedness after the Closing Date (other than as permitted
by Section 9.08, except Section 9.08(l)).
"DEFAULT" shall mean an event that with notice or lapse of time or
both would become an Event of Default.
"DESTRUCTION" shall mean any material damage to, or loss or
destruction of, any Real Property or Mortgaged Real Property. Destruction
shall not include any Casualty Event.
"DISPOSITION" shall mean any conveyance, sale, lease assignment,
transfer or other disposition (including by way of merger or consolidation
and including any sale-leaseback transaction) of any Property (including
shares of capital stock of any Subsidiary or joint venture of any Person)
(whether now owned or hereafter acquired) by Borrower or any Subsidiary to
any Person and any liquidating or other non-ordinary course dividend or
distribution received by Borrower or any Subsidiary in respect of any joint
venture or similar enterprise, excluding, however, any Excluded Disposition.
"DISPOSITION EVENT" shall mean the receipt by Borrower or any
Subsidiary of cash proceeds or cash distributions of any kind from Property
received in consideration for a Disposition.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of Borrower or any Subsidiary, or of any Equity Rights, but
excluding dividends payable in respect of shares of common stock through the
issuance of additional shares of common stock and any redemption or exchange
of any capital stock for common stock.
<PAGE>
-9-
"DOCUMENT" shall mean each IMSAMET Acquisition Document, each
Related Document, the Barmet Option, the Alchem Option, the Barmet Right of
First Refusal and the Rock Creek Acquisition Documents.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"ELIGIBLE PERSON" shall mean (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100.0 million; (ii) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital and
surplus in a dollar equivalent amount of at least $100.0 million; PROVIDED,
HOWEVER, that such bank is acting through a branch or agency located in the
country in which it is organized or another country that is also a member of
the OECD; (iii) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Lender, (B) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (C) a Person of which a
Lender is a Subsidiary; and (iv) an insurance company, mutual fund or other
financial institution organized under the laws of the United States, any
state thereof, any other country that is a member of the OECD or a political
subdivision of any such country with assets, or assets under management, in a
dollar equivalent amount of at least $100.0 million.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written notice, claim, demand or other communication (collectively, a
"CLAIM") by any other Person alleging such Person's liability for any costs,
cleanup costs, governmental response costs, damages to natural resources or
other Property, personal injuries, fines or penalties arising out of or
resulting from (i) the presence, or Release into the environment, of any
Hazardous Material at any location, whether or not owned by such Person, or
(ii) any violation of any Environmental Law. The term "ENVIRONMENTAL CLAIM"
shall include any claim by any Person seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from the presence of Hazardous Materials or arising from alleged injury or
threat of injury to health, safety or the environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
applicable Federal, state, local and foreign laws, rules or regulations, any
orders, decrees, judgments or injunctions and the common law in each case as
now or hereafter in effect, relating to pollution or protection of human
health, safety or the environment, including without limitation, ambient air,
indoor air, soil, surface water, ground water, wetlands, land or subsurface
strata, including, without limitation, those relating to Releases or
threatened Releases of Hazardous Materials into the environment, or otherwise
relating to the manufacture, processing, generation, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials.
"EQUITY ISSUANCE" shall mean any of (a) any issuance or sale by
Borrower or any Subsidiary after the Closing Date of (x) any capital stock
(including any capital stock issued upon exercise of any Equity Rights) or
any Equity Rights or (y) any other security or instrument
<PAGE>
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representing an equity interest (or the right to obtain any equity interest)
in the issuing or selling Person or (b) the receipt by Borrower or any
Subsidiary after the Closing Date of any capital contribution (whether or not
evidenced by any equity security issued by the recipient of such
contribution).
"EQUITY RIGHTS" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive rights
or agreements of any kind (including any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such
Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA GROUP" shall mean Borrower, any Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether
or not incorporated) under common control which, together with Borrower or
any Subsidiary, are treated as a single employer under Section 414 of the
Code.
"EVENT OF DEFAULT" see Section 10.
"EXCESS CASH FLOW" shall mean, for any period, the difference, if
any, of (a) the sum of the following items for Borrower and its Consolidated
Subsidiaries on a consolidated basis for such period determined in accordance
with GAAP: (i) consolidated net income, adjusted by (1) excluding any gains
from any Disposition (including Excluded Disposition) (other than inventory
or equipment in the ordinary course of business), (2) adding back the non-cash
portion of all extraordinary or non-recurring items of expense and (3) deducting
the non-cash portion of all extraordinary or non-recurring items of income,
in each case to the extent taken into account in the calculation of such net
income, (ii) the non-cash portion of any other item of expense to the extent
deducted in determining such net income, other than to the extent requiring
an accrual or reserve for future cash expenses, (iii) depreciation and
amortization allowances to the extent deducted in determining such net income
and (iv) net decreases in Working Capital, MINUS (b) the sum of the following
items for Borrower and its Consolidated Subsidiaries on a consolidated basis
for such period: (i) Capital Expenditures (without regard to the exclusions
from the definition thereof) for such period (excluding those that are paid
from the proceeds of any Debt Issuance (without regard to the exclusions from
the definition thereof), any Equity Issuance, any Disposition Events or
insurance or award proceeds), (ii) principal payments in respect of
Indebtedness, including mandatory Amortization Payments and voluntary
prepayments of Loans (excluding (1) any payment effected in connection with
the refinancing of any Indebtedness, (2) any voluntary prepayments of
Revolving Credit Loans to the extent not accompanied by a permanent reduction
in the aggregate amount of Revolving Credit Commitments and (3) any
prepayment of Indebtedness (including the Loans) made with Excess Cash Flow
from any prior period or the proceeds of any Disposition, Equity Issuance or
any Debt Issuance (without
<PAGE>
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regard to the exclusions from the definition thereof)), (iii) net increases
in Working Capital and (iv) non-cash credits to the extent added in
determining such net income.
"EXCLUDED DISPOSITIONS" shall mean (i) Dispositions for fair market
value resulting in no more than $1.0 million in proceeds in any fiscal year;
(ii) an exchange of equipment or inventory for like equipment or inventory,
provided that the Person effecting such exchange receives substantially
equivalent value in such exchange for the Property disposed of; (iii) any
transaction permitted by Section 9.06 (other than clause (j), (k) or (l)
thereof), any Lien permitted by Section 9.07, any Investment permitted by
Section 9.09 and any Dividend Payment permitted by Section 9.10; (iv) any
issuance of capital stock by any Subsidiary to directors to qualify directors
if required by applicable law if resulting in DE MINIMIS proceeds; (v) the
sale of inventory in the ordinary course of business; and (vi) the transfer
of all Property of Borrower or any Subsidiary used at or in connection with
the Facility to the Barmet Option Entity (which at the time of such transfer
and at all times prior to the delivery of capital stock or other ownership
interests therein to Barmet pursuant to the exercise of the Barmet Option,
shall be 100% owned by Borrower or a Wholly Owned Subsidiary) in connection
with the exercise by Barmet of the Barmet Option.
"EXISTING LETTERS OF CREDIT" see the definition of "Letter of
Credit" and ANNEX B.
"FACILITY" see the definition of Barmet Option.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate PER ANNUM
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; PROVIDED, HOWEVER, that (a) if the day
for which such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day
and (b) if such rate is not so published for any Business Day, the Federal
Funds Rate for such Business Day shall be the average rate quoted to the
Administrative Agent on such Business Day on such transactions by three
federal funds brokers of recognized standing, as determined by the
Administrative Agent.
"FEE LETTER" shall mean the Fee Letter dated December 5, 1996 by
and between Merrill Lynch Capital Corporation and Borrower.
"FEE LETTERS" shall mean the Administrative Agent's Fee Letter and
the Fee Letter.
"FOREIGN PENSION PLAN" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by Borrower or
any one or more Subsidiaries primarily for the benefit of employees of
Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral
<PAGE>
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of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA, or any
such plan as to which Borrower or any Subsidiary may have any liability.
"FOREIGN SUBSIDIARY" shall mean any direct or indirect Subsidiary
organized outside of the United States as defined in Section 7701(a)(9) of
the Code (or any successor provision).
"GAAP" shall mean generally accepted accounting principles set
forth as of the relevant date in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"GOVERNMENTAL AUTHORITY" shall mean any government or political
subdivision or any agency, authority, board, bureau, central bank,
commission, department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic, or any
entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"GUARANTEE" shall mean the guarantee of each Subsidiary Guarantor
pursuant to Section 6.
"GUARANTEED OBLIGATIONS" see Section 6.01.
"HAZARDOUS MATERIAL" shall mean any pollutant, contaminant, toxic,
hazardous or extremely hazardous substance, constituent or waste, or any
other constituent, waste, material, compound or substance including, without
limitation, petroleum including crude oil or any fraction thereof, or any
petroleum product, subject to regulation under any Environmental Law.
"IMSAMET" shall mean IMSAMET, Inc., a Delaware corporation.
"IMSAMET ACQUISITION" shall mean the acquisition by Borrower of
100% of the capital stock of IMSAMET and all capital stock of its
Subsidiaries owned by IMSAMET as set forth in the IMSAMET Acquisition
Documents pursuant to the IMSAMET Acquisition Documents.
"IMSAMET ACQUISITION AGREEMENT" shall mean the Stock Purchase
Agreement dated as of November 26, 1996 among Borrower, IMSAMET and
EnviroSource, Inc.
"IMSAMET ACQUISITION DOCUMENTS" shall mean the IMSAMET Acquisition
Agreement, and each of the Related Documents with respect thereto, in each
case, including all exhibits, appendices, annexes and attachments thereto, in
each case as amended and in effect from time to time in accordance with its
terms and this Agreement.
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"INDEBTEDNESS" shall mean, for any Person, without duplication, (a)
all indebtedness for borrowed money of such Person; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase price
of Property or services (other than trade payables and accrued expenses not
overdue by more than 60 days incurred in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment obligations
of such Person with respect to Surety Instruments (such as, for example,
unpaid reimbursement obligations in respect of a drawing under a letter of
credit); (d) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of Property or businesses; (e)
all indebtedness of such Person created or arising under any conditional sale
or other title retention agreement, or incurred as financing, in either case
with respect to Property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such Property); (f) all Capital Lease
Obligations of such Person; (g) all net obligations of such Person with
respect to Swap Contracts (such obligations to be equal at any time to the
aggregate net amount that would have been payable by such Person at the most
recent fiscal quarter end in connection with the termination of such Swap
Contracts at such fiscal quarter end); (h) all indebtedness of other Persons
referred to in clauses (a) through (g) above secured by (or for which the
holder of such indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien upon or in Property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness; and (j) all
Contingent Obligations of such Person in respect of indebtedness or
obligations of others of the kinds referred to in clauses (a) through (h)
above. Indebtedness shall not include accounts extended by suppliers in the
ordinary course on normal trade terms in connection with the purchase of
goods and services. The Indebtedness of any Person shall include any
Indebtedness of any partnership in which such Person is the general partner.
"INDEMNITEE" see Section 12.03.
"INTELLECTUAL PROPERTY" see Section 8.21.
"INTEREST COVERAGE RATIO" shall mean, for any Measurement Period,
the ratio of (x) the remainder of Consolidated EBITDA for such period less
Capital Expenditures (without regard to the exclusions in clause (ii) of the
definition thereof (other than the IMSAMET Acquisition and the Rock Creek
Acquisition)) for such period to (y) Consolidated Interest Expense for such
period.
"INTEREST PERIOD" shall mean, with respect to any LIBOR Loan, each
period commencing on the date such LIBOR Loan is made or Converted from an
Alternate Base Rate Loan or the last day of the next preceding Interest
Period for such LIBOR Loan and (subject to the requirements of Sections
2.01(a), 2.01(b) and 2.09) ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as Borrower may
select as provided in Section 4.05, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day for
which there is no numerically
<PAGE>
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corresponding day in the appropriate subsequent calendar month) shall end on
the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for any Revolving
Credit Loan would otherwise end after the Revolving Credit Commitment
Termination Date, such Interest Period shall end on the Revolving Credit
Commitment Termination Date; (ii) no Interest Period for any Term Loan may
commence before and end after any Principal Payment Date, unless, after
giving effect thereto, the aggregate principal amount of the Term Loans
having Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of the Term Loans
scheduled to be outstanding after giving effect to the payments of principal
required to be made on such Principal Payment Date; (iii) each Interest
Period that would otherwise end on a day that is not a Business Day shall end
on the next succeeding Business Day (or, if such next succeeding Business Day
falls in the next succeeding calendar month, on the next preceding Business
Day); and (iv) notwithstanding clauses (i) and (ii) above, no Interest Period
shall have a duration of less than one month and, if the Interest Period for
any LIBOR Loan would otherwise be a shorter period, such Loan shall not be
available hereunder as a LIBOR Loan for such period.
"INTEREST RATE CERTIFICATE" shall mean an Officers' Certificate
substantially in the form of EXHIBIT C, delivered pursuant to Section
9.01(e), demonstrating in reasonable detail the calculation of the Leverage
Ratio as of the last day of the subject period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between
such Person and one or more financial institutions providing for the transfer
or mitigation of interest risks either generally or under specific
contingencies.
"INVESTMENT" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of capital
stock, bonds, notes, debentures, partnership or other ownership interests or
other securities of any other Person; (b) the making of any deposit with, or
advance, loan or other extension of credit to, any other Person (including
the purchase of Property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such Property to such Person);
(c) any capital contribution to (by means of any transfer of cash or other
Property to others or any payment for Property or services for the account or
use of others) any other Person; (d) the entering into, or direct or indirect
incurrence, of any Contingent Obligation with respect to Indebtedness or
other liability of any other Person; (e) the entering into of any Swap
Contract; or (e) any agreement to make any Investment (including any "short
sale" or any sale of any securities at a time when such securities are not
owned by the Person entering into such sale).
"ISSUING LENDER" shall mean Texas Commerce Bank National
Association or any of its Affiliates, or such other Lender or Lenders
selected by the Administrative Agent reasonably satisfactory to Borrower, as
the issuer of Letters of Credit under Section 2.03, together with its
successors and assigns in such capacity.
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"JOINDER AGREEMENT" shall mean an agreement substantially in the
form of EXHIBIT K.
"LEASE" shall mean any lease, sublease, franchise agreement,
license, occupancy or concession agreement.
"LENDER" and "LENDERS" see the introduction to this Agreement.
"LETTER OF CREDIT" shall mean (i) any letter of credit issued
pursuant to Section 2.03 after the date hereof and (ii) the standby letters
of credit issued prior to the Closing Date by Texas Commerce Bank National
Association for the account of Borrower, copies of which are attached hereto
as ANNEX B (such Letters of Credit annexed as ANNEX B being hereinafter
referred to as the "EXISTING LETTERS OF CREDIT").
"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any Letter
of Credit, collectively, any other agreements, instruments, guarantees or
other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations
of the parties concerned or at risk with respect to such Letter of Credit or
(b) any collateral security for any of such obligations, each as the same may
be modified and supplemented and in effect from time to time.
"LETTER OF CREDIT INTEREST" shall mean, for each Revolving Credit
Lender, such Lender's participation interest (or, in the case of the Issuing
Lender, the Issuing Lender's retained interest) in the Issuing Lender's
liability under Letters of Credit and such Lender's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"LETTER OF CREDIT LIABILITY" shall mean, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the undrawn
face amount of such Letter of Credit, PLUS (b) the aggregate unpaid principal
amount of all Reimbursement Obligations of Borrower at such time due and
payable in respect of all drawings made under such Letter of Credit.
"LEVERAGE RATIO" shall mean, at any date, the ratio of (x) Total
Debt at such date to (y) Consolidated EBITDA for the Measurement Period ended
on or immediately prior to such date.
"LIBOR BASE RATE" shall mean, with respect to any LIBOR Loan for
any Interest Period therefor, the rate PER ANNUM at which the Lender which is
the Administrative Agent is offered deposits in Dollars at approximately
11:00 a.m. London time (or as soon thereafter as practicable) on the date two
Business Days prior to its portion of the first day of such Interest Period
in the London interbank market for delivery on the first day of such Interest
Period, for the number of days comprised therein and in an amount comparable
to its portion of the amount of the LIBOR Loans to be outstanding during such
Interest Period.
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"LIBOR LOANS" shall mean Loans that bear interest at rates based on
rates referred to in the definition of "LIBOR Rate".
"LIBOR RATE" shall mean, for any LIBOR Loan for any Interest Period
therefor, a rate PER ANNUM (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the LIBOR
Base Rate for such Loan for such Interest Period divided by 1 minus the
Reserve Requirement (if any) for such Loan for such Interest Period.
"LIEN" shall mean, with respect to any Property, any mortgage,
lien, pledge, claim, charge, security interest or encumbrance of any kind, or
any other type of preferential arrangement in respect of such Property,
including any easement, right-of-way or other encumbrance on title to Real
Property. For purposes of the Basic Documents, a Person shall be deemed to
own subject to a Lien any Property 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 (other than an operating
lease) relating to such Property.
"LOANS" shall mean the Revolving Credit Loans and the Term Loans.
"LOSSES" of any Person shall mean the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable
and documented costs or disbursements of any kind or nature whatsoever
(including reasonable fees and expenses of counsel in connection with any
Proceeding commenced or threatened in writing, whether or not such Person
shall be designated a party thereto) at any time (including following the
payment of the Obligations) incurred by, imposed on or asserted against such
Person.
"MAJORITY LENDERS" shall mean, subject to the last paragraph of
Section 12.04, (i) at any time prior to the Closing Date, Lenders holding at
least a majority of the aggregate amount of the Commitments and (ii) at any
time after the Closing Date, Lenders holding at least a majority of the sum
of (without duplication) (a) the aggregate principal amount of outstanding
Loans, PLUS (b) the aggregate amount of all Letter of Credit Liabilities,
PLUS (c) the aggregate Unutilized Revolving Credit Commitments then in effect.
"MAJORITY REVOLVING CREDIT LENDERS" shall mean, subject to the last
paragraph of Section 12.04, (i) at any time prior to the Closing Date,
Lenders holding at least a majority of the aggregate amount of the Revolving
Credit Commitments and (ii) at any time after the Closing Date, Lenders
holding at least a majority of the sum of (without duplication) (a) the
aggregate principal amount of outstanding Revolving Credit Loans, PLUS (b)
the aggregate amount of all Letter of Credit Liabilities, PLUS (c) the
aggregate Unutilized Revolving Credit Commitments then in effect.
"MAJORITY TERM LENDERS" shall mean, subject to the last paragraph
of Section 12.04, (i) at any time prior to the Closing Date, Lenders holding
at least a majority of the Term
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Loan Commitments and (ii) at any time after the Closing Date, Lenders holding
at least a majority of the aggregate principal amount of outstanding Term
Loans.
"MARGIN STOCK" shall mean margin stock within the meaning of
Regulations G, T, U and X.
"MATERIAL ADVERSE EFFECT" shall mean any of (a) a material adverse
effect on the business, assets, properties, liabilities, results of
operations, condition (financial or otherwise), business prospects or
solvency of Borrower and the Subsidiaries taken as a whole or, prior to the
consummation of the IMSAMET Acquisition, IMSAMET and its Subsidiaries taken
as a whole, (b) a material adverse effect on the ability of the Obligors to
consummate in a timely manner the Transactions or to perform their
obligations under any Basic Document or (c) an adverse effect on the
legality, binding effect or enforceability of any provision of any Basic
Document or affecting the rights and remedies of the Lenders thereunder.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1.0 million.
"MEASUREMENT PERIOD" shall mean the most recent four full fiscal
quarters of Borrower for which financial statements have been provided
pursuant to Section 9.01.
"MORTGAGE" shall mean an agreement creating and evidencing a Lien
on a Mortgaged Real Property, which shall be substantially in the form of
EXHIBIT G, containing such schedules and including such additional provisions
and other deviations from such Exhibit as shall be necessary to conform such
document to applicable or local law or as shall be customary under local law,
as the same may at any time be amended, modified or supplemented in
accordance with the terms thereof and hereof.
"MORTGAGED REAL PROPERTY" shall mean each Real Property set forth
on SCHEDULE 1.01(b) which shall be subject to a Mortgage delivered on the
Closing Date.
"MULTIEMPLOYER PLAN" shall mean at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the
ERISA Group during such five year period.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"NET AVAILABLE PROCEEDS" shall mean:
(i) in the case of any Disposition Event, the amount of Net Cash
Payments received by Borrower or any Subsidiary in connection with such
Disposition Event;
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(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by Borrower or any Subsidiary in respect of such Casualty Event net of (A)
reasonable expenses incurred by Borrower and the Subsidiaries in connection
therewith, (B) repayments of Indebtedness (other than Indebtedness
hereunder) to the extent secured by a Lien on such Property and (C) any
income and transfer taxes payable by Borrower or any Subsidiary in respect
of such Casualty Event;
(iii) in the case of any Equity Issuance or any Debt Issuance, the
aggregate amount of all cash received by Borrower and the Subsidiaries in
respect thereof net of all reasonable investment banking fees, discounts
and commissions, legal fees, consulting fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses, actually incurred and satisfactorily documented in connection
therewith;
(iv) in the case of any Taking or Destruction, the Net Award or Net
Proceeds, as applicable, resulting therefrom; and
(v) with respect to any loss of title to all or any portion of any
Mortgaged Real Property or Real Property, any title insurance proceeds
resulting therefrom.
"NET AWARD" shall mean the proceeds, award or payment received by
any Obligor or any of its Subsidiaries in respect of any Taking, together
with any interest thereon, less the amount of any reasonable expenses
incurred in litigating, arbitrating, compromising or settling any claim
arising out of any such Taking.
"NET CASH PAYMENTS" shall mean, with respect to any Disposition
Event, the aggregate amount of all cash payments (including any cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise,
but only as and when received) received by Borrower or any Subsidiary
directly or indirectly in connection with such Disposition Event; PROVIDED,
HOWEVER, that Net Cash Payments shall be net (without duplication) of (i) the
amount of all reasonable fees and expenses paid by Borrower and the
Subsidiaries in connection with such Disposition Event (the "RELEVANT
DISPOSITION"); (ii) any taxes paid or estimated to be payable by Borrower and
the Subsidiaries as a result of the Relevant Disposition; (iii) any
repayments by Borrower or any Subsidiary of Indebtedness to the extent that
(a) such Indebtedness is secured by a Lien on the Property that is the
subject of the Relevant Disposition and (b) the transferee of (or holder of a
Lien on) such Property requires that such Indebtedness be repaid as a
condition to the purchase of such Property; and (iv) amounts required to be
paid to any Person (other than Borrower and the Subsidiaries) owning a
beneficial interest in the assets subject to such Relevant Disposition.
"NET PROCEEDS" shall mean the proceeds of any insurance or other
payment received by any Obligor or any of its Subsidiaries in connection with
any Destruction, together with any interest earned thereon, less the amount
of any reasonable expenses
<PAGE>
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incurred in litigating, arbitrating, compromising or settling any claim
arising out of such Destruction.
"NOTES" shall mean the Revolving Credit Notes and the Term Loan
Notes.
"NOTICE OF ASSIGNMENT" shall mean a notice of assignment pursuant
to Section 12.06 substantially in the form of EXHIBIT F.
"OBLIGATIONS" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing, owing to any Creditor pursuant to the terms of any Basic Document
or secured by any of the Security Documents.
"OBLIGORS" shall mean Borrower and the Subsidiary Guarantors.
"OFFICERS' CERTIFICATE" shall mean, as applied to any corporation,
a certificate executed on behalf of such corporation by its Chairman of the
Board (if an officer) or its Chief Executive Officer or one of its Vice
Presidents and by its Chief Financial Officer, Vice President-Finance or its
Treasurer or any Assistant Treasurer in their official (and not individual)
capacities; PROVIDED, HOWEVER, that every Officers' Certificate with respect
to the compliance with a condition precedent to the making of any Loan or the
taking of any other action hereunder shall include (i) a statement that the
officers making or giving such Officers' Certificate have read such condition
and any definitions or other provisions contained in this Agreement relating
thereto and (ii) a statement as to whether, in the opinion of the signers,
such condition has been complied with.
"ORIGINAL LENDERS" shall mean the Lenders named on the signature
pages hereof.
"OTHER TAXES" see Section 5.06(c).
"PAYOR" see Section 4.06.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"PERMITTED INVESTMENTS" shall mean, for any Person: (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or by any agency thereof, in either case maturing not more than one
year from the date of acquisition thereof by such Person; (b) time deposits,
certificates of deposit, bankers' acceptances (including eurodollar deposits)
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and
undivided profits of at least $500.0 million and a deposit rating of
investment grade; (c) commercial paper rated A-1 or better by Standard &
Poor's Corporation or P-1 or better by Moody's Investors Service, Inc.,
<PAGE>
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respectively, maturing not more than 180 days from the date of acquisition
thereof by such Person; and (d) money market mutual funds that invest
primarily in the foregoing items.
"PERMITTED LIENS" see Section 9.07.
"PERSON" shall mean any individual, corporation, limited liability
company, company, voluntary association, partnership, joint venture, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"PLAN" shall mean at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"PLEDGED COLLATERAL" shall have the meaning set forth in the
Security Agreement.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any
Loan, any Reimbursement Obligation or any other amount payable under this
Agreement, any Note or any other Basic Document that is not paid when due
(whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise), a rate PER ANNUM during the period from and
including the due date to but excluding the date on which such amount is paid
in full equal to 2%, PLUS the Alternate Base Rate as in effect from time to
time, PLUS the Applicable Margin for Alternate Base Rate Loans; PROVIDED,
HOWEVER, that, if the amount so in default is principal of a LIBOR Loan and
the due date thereof is a day other than the last day of the Interest Period
therefor, the "Post-Default Rate" for such principal shall be, for the period
from and including such due date to but excluding the last day of such
Interest Period, 2%, PLUS the interest rate for such Loan as provided in
Section 3.02(b) and, thereafter, the rate provided for above in this
definition.
"PRIME RATE" shall be the rate most recently announced by Texas
Commerce Bank National Association at its principal office in Houston, Texas
as its "Prime Rate." Prime Rate is one of Texas Commerce Bank National
Association's base rates and serves as the basis upon which effective rates
of interest are calculated for those loans making reference thereto, and is
evidenced by the reporting thereof after its announcement in such internal
publication or publications as Texas Commerce Bank National Association may
designate. Any change in the interest rate resulting from a change in such
Prime Rate shall become effective on the Business Day on which each change in
Prime Rate is announced by Texas Commerce Bank National Association.
"PRINCIPAL OFFICE" shall mean the principal office of the
Administrative Agent, located on the date hereof in Houston, Texas.
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"PRINCIPAL PAYMENT DATE" shall mean the Quarterly Dates commencing
with the last Business Day of March 1997 through and including the last
Business Day of December 2003.
"PRIOR LIENS" shall mean Liens which, pursuant to the provisions of
any Security Document, are or may be superior to the Lien of such Security
Document.
"PROCEEDING" shall mean any claim, counterclaim, action, judgment,
suit, hearing, governmental investigation, arbitration or proceeding,
including by or before any Governmental Authority.
"PROPERTY" shall mean any right or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including capital stock or other ownership
interests of any Person.
"PROPOSED LENDER" see Section 5.07.
"QUARTERLY DATES" shall mean the last Business Day of March, June,
September and December in each year, commencing with the last Business Day of
March 1997.
"REAL PROPERTY" shall mean all right, title and interest of
Borrower or any Subsidiary (including, without limitation, any leasehold
estate) in and to a parcel of real property owned or operated by Borrower or
any Subsidiary together with, in each case, all improvements and appurtenant
fixtures, equipment, personal property, easements and other property and
rights incidental to the ownership, lease or operation thereof.
"REGISTER" see Section 2.08.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System (or any successor) as the same may be modified and
supplemented and in effect from time to time.
"REGULATIONS G, T, U AND X" shall mean, respectively, Regulations
G, T, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from
time to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any
change after the date hereof in Federal, state or foreign law or regulations
(including Regulation D) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks or other
financial institutions including such Lender of or under any Federal, state
or foreign law or regulations (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority or any other regulatory agency with proper
authority, including non-governmental agencies or bodies, charged with the
interpretation or administration thereof or by the NAIC.
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"REIMBURSEMENT OBLIGATIONS" shall mean, at any time, the
obligations of Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid
by the Issuing Lender in respect of any drawings under a Letter of Credit.
"RELATED DOCUMENTS" shall mean any agreement, document or
instrument entered into by any Obligor in connection with the IMSAMET
Acquisition Agreement or the Rock Creek Acquisition Agreement, as any such
agreement, document or instrument is amended and in effect from time to time
in accordance with its respective terms and this Agreement.
"RELEASE" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment.
"RELEVANT PARTIES" and "RELEVANT PARTY" see Section 10(b).
"REPLACED LENDER" see Section 5.07.
"REQUIRED PAYMENT" see Section 4.06.
"REQUIREMENT OF LAW" as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any
LIBOR Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
LIBOR Loans shall be deemed to constitute Eurocurrency liabilities and to be
subject to such reserve requirements without benefit of or credit for
proration, exceptions or offsets which may be available from time to time to
any Lender under Regulation D. Without limiting the effect of the foregoing,
the Reserve Requirement shall include any other reserves required to be
maintained by such member banks by reason of any Regulatory Change with
respect to (i) any category of liabilities that includes deposits by
reference to which the LIBOR Base Rate is to be determined as provided in the
definition of "LIBOR Base Rate" in this Section 1.01 or (ii) any category of
extensions of credit or other assets that includes LIBOR Loans.
"RESTORATION" see each Mortgage.
"REVOLVING CREDIT COMMITMENT" shall mean, for each Revolving Credit
Lender, the obligation of such Lender to make Revolving Credit Loans in an
aggregate principal
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amount at any one time outstanding up to but not exceeding the amount set
opposite the name of such Lender on ANNEX A under the caption "Revolving
Credit Commitment" (as the same may be reduced from time to time pursuant to
Section 2.04(b) or changed pursuant to Section 12.06(b)). The initial
aggregate principal amount of the Revolving Credit Commitments is $20.0
million.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect
to any Revolving Credit Lender, the ratio of (a) the amount of the Revolving
Credit Commitment of such Lender to (b) the aggregate amount of the Revolving
Credit Commitments of all of the Lenders.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean the
Business Day immediately prior to January 21, 2002.
"REVOLVING CREDIT COMMITMENTS" shall mean the aggregate sum of the
Revolving Credit Commitment of all of the Revolving Credit Lenders. The
initial aggregate principal amount of the Revolving Credit Commitments is
$20.0 million.
"REVOLVING CREDIT LENDERS" shall mean (a) on the date hereof, the
Lenders having Revolving Credit Commitments on the signature pages hereof and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans
and Revolving Credit Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b).
"REVOLVING CREDIT LOANS" see Section 2.01(a).
"REVOLVING CREDIT NOTES" shall mean the promissory notes provided
for by Section 2.08(a) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
"ROCK CREEK" see Section 9.09(y).
"ROCK CREEK ACQUISITION" see Section 9.09(y).
"ROCK CREEK ACQUISITION AGREEMENT" shall mean the Stock Purchase
Agreement dated as of January 21, 1997 among the Borrower, James T. Skoch,
William T. Whitworth, William T. Beargie and Randy L. Collins, as amended and
in effect from time to time in accordance with its terms and this Agreement.
"ROCK CREEK ACQUISITION DOCUMENTS" shall mean the Rock Creek
Acquisition Agreement, and each of the Related Documents with respect
thereto, in each case, including all exhibits, appendices, annexes and
attachments thereto, in each case as amended and in effect from time to time
in accordance with its terms and this Agreement.
"ROCK CREEK INDEBTEDNESS" see Section 9.08(k).
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"SECTION 5.06 CERTIFICATE" see Section 5.06(b).
"SECURITY AGREEMENT" shall mean a Security Agreement substantially
in the form of EXHIBIT D among the Obligors and the Administrative Agent, as
the same may be amended, modified or supplemented in accordance with the
terms thereof and hereof.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the
Mortgages and all Uniform Commercial Code financing statements required by
this Agreement, the Security Agreement or any Mortgage to be filed with
respect to the security interests in Property and fixtures created pursuant
to the Security Agreement or any Mortgage and any other document or
instrument utilized to pledge as Collateral for the Obligations on any
property or assets of whatever kind or nature.
"STATE AND LOCAL REAL PROPERTY DISCLOSURE REQUIREMENTS" shall mean
any state or local laws requiring notification of the buyer of real property,
or notification, registration, or filing to or with any state or local
agency, prior to the sale of any real property or transfer of control of an
establishment, of the actual or threatened presence or release into the
environment, or the use, disposal, or handling of Hazardous Materials on, at,
under, or near the real property to be sold or the establishment for which
control is to be transferred.
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening
of any contingency) is at the time directly or indirectly owned or controlled
by such Person or one or more Subsidiaries of such Person or by such Person
and one or more Subsidiaries of such Person. Unless the context clearly
requires otherwise, all references to any Subsidiary shall mean a Subsidiary
of Borrower. Prior to and at the consummation of the IMSAMET Acquisition,
the term Subsidiary with respect to Borrower shall include all Persons which
are to become a Subsidiary upon consummation of the IMSAMET Acquisition.
"SUBSIDIARY GUARANTORS" shall mean each of the Subsidiaries of
Borrower listed on SCHEDULE 1.01(a) and each other Wholly Owned Subsidiary
that guarantees the payment of the Obligations of Borrower hereunder pursuant
to Section 9.21 and the other Basic Documents.
"SURETY INSTRUMENTS" shall mean all letters of credit (including
standby and commercial), bankers' acceptances, bank guarantees, surety bonds
and similar instruments.
"SURVEY" shall mean a survey of any Mortgaged Real Property (and
all improvements thereon): (i) prepared by a surveyor or engineer licensed
to perform surveys in the state, province or country where such Mortgaged
Real Property is located, (ii) dated (or
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redated) not earlier than six months prior to the date of delivery thereof
unless there shall have occurred within the six months prior to such date of
delivery any exterior construction on the site of such Mortgaged Real
Property, in which event such survey shall be dated (or redated) after the
completion of such construction or, if such construction shall not have been
completed as of such date of delivery, not earlier than 20 days prior to such
date of delivery, (iii) certified by the surveyor (in a manner acceptable to
the Administrative Agent) to the Administrative Agent and the Title Company
and (iv) complying in all respects with the minimum detail requirements of
the American Land Title Association as such requirements are in effect on the
date of preparation of such survey.
"SWAP CONTRACT" means any agreement (including any master agreement
and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward
rate agreement, commodity swap, commodity option, equity or equity index swap
or option, bond option, interest rate option, foreign exchange agreement,
rate cap, collar or floor agreement, currency swap agreement, cross-currency
rate swap agreement, swaption, currency option or any other similar agreement
(including any option to enter into any of the foregoing).
"TAKING" shall mean any taking of any Mortgaged Real Property or
Real Property of any Obligor or any of its Subsidiaries or any part thereof,
in or by condemnation or other eminent domain proceedings pursuant to any
law, general or special, or by reason of the temporary requisition of the use
or occupancy of any Mortgaged Real Property or Real Property of any Obligor
or any of its Subsidiaries or any part thereof, by any Governmental
Authority, civil or military. Taking shall not include any Casualty Event.
"TERM LOAN COMMITMENT" shall mean, for each Term Loan Lender, the
obligation of such Lender to make a Term Loan in an amount up to but not
exceeding the amount set opposite the name of such Lender on ANNEX A under
the caption "Term Loan Commitment" (as the same may be reduced from time to
time pursuant to Section 2.04(c) or changed pursuant to Section 12.06(b)).
"TERM LOAN COMMITMENTS" shall mean the aggregate sum of the Term
Loan Commitment of all the Lenders. The initial aggregate principal amount
of the Term Loan Commitments is $105.0 million.
"TERM LOAN LENDERS" shall mean (a) on the date hereof, the Lenders
having Term Loan Commitments on the signature pages hereof and (b)
thereafter, the Lenders from time to time holding Term Loans and Term Loan
Commitments after giving effect to any assignments thereof permitted by
Section 12.06(b).
"TERM LOAN NOTES" shall mean the promissory notes provided for by
Section 2.08(b) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and
supplemented and in effect from time to time.
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"TERM LOANS" shall mean the loans provided for by Section 2.01(b),
which may be Alternate Base Rate Loans and/or LIBOR Loans.
"TITLE COMPANY" shall mean, collectively, the title insurance or
abstract companies set forth on SCHEDULE 1.01(c) or such title insurance or
abstract company as shall be reasonably acceptable to the Administrative
Agent.
"TOTAL DEBT" shall mean at any date, the aggregate amount of
Indebtedness of Borrower and the Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"TRANSACTIONS" shall mean the IMSAMET Acquisition and the borrowings
hereunder on the Closing Date.
"TYPE" see Section 1.03.
"UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
"UNFUNDED LIABILITIES" shall mean, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii)
the fair market value of all Plan assets allocable to such liabilities under
Title I of ERISA (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan.
"UNUTILIZED REVOLVING CREDIT COMMITMENT" shall mean, for any
Revolving Credit Lender, at any time, the excess of such Lender's Revolving
Credit Commitment at such time over the sum of (i) the aggregate outstanding
principal amount of Revolving Credit Loans made by such Lender and (ii) such
Lender's Revolving Credit Commitment Percentage of the aggregate amount of
Letter of Credit Liabilities at such time.
"VAW-IMCO" shall mean the joint venture between Borrower and VAW
Aluminum AG known as VAW-IMCO Gus und Recycling GmbH.
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person,
any corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, 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 Wholly Owned Subsidiaries of such
Person. Unless the context clearly requires otherwise, all references to any
Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary of Borrower.
"WORKING CAPITAL" shall mean an amount determined for Borrower and
the Subsidiaries (determined on a consolidated basis without duplication in
accordance with
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GAAP) equal to the sum of all current assets (other than
cash) less the sum of all current liabilities (other than the current portion
of long-term indebtedness).
1.02 ACCOUNTING TERMS AND DETERMINATIONS. Except as otherwise
provided in this Agreement, all computations and determinations as to
accounting or financial matters shall be made in accordance with GAAP, and
all accounting or financial terms shall have the meanings ascribed to such
terms by GAAP as in effect on the date hereof. All financial statements to
be delivered pursuant to this Agreement shall be prepared in accordance with
GAAP. Unless otherwise required by applicable laws or regulations, all
financial covenants are to be calculated in accordance with GAAP as in effect
on the date hereof unless such modifications are agreed to by the parties
hereto.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are
distinguished by "Class" and by "Type". The "CLASS" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is a Revolving Credit
Loan or Term Loan, each of which constitutes a Class. The "TYPE" of a Loan
refers to whether such Loan is an Alternate Base Rate Loan or a LIBOR Loan,
each of which constitutes a Type. Loans may be identified by both Class and
Type.
1.04 RULES OF CONSTRUCTION. (a) In this Agreement and each other
Basic Document, unless the context clearly requires otherwise (or such other
Basic Document clearly provides otherwise), references to (i) the plural
include the singular, the singular the plural and the part the whole; (ii)
Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; (iii) agreements (including this Agreement), promissory notes
and other contractual instruments include subsequent amendments, assignments,
and other modifications thereto, but only to the extent such amendments,
assignments or other modifications thereto are not prohibited by their terms
or the terms of any Basic Document; (iv) statutes and related regulations
include any amendments of same and any successor statutes and regulations;
and (v) time shall be a reference to New York City time. Where any provision
herein refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person.
(b) In this Agreement and each other Basic Document, unless the
context clearly requires otherwise (or such other Basic Document clearly
provides otherwise), (i) "AMEND" shall mean "amend, amend and restate,
supplement or modify"; and "AMENDED" and "AMENDMENT" shall have meanings
correlative to the foregoing; (ii) in the computation of periods of time from
a specified date to a later specified date, "FROM" shall mean "from and
including"; "TO" and "UNTIL" shall mean "to but excluding"; and "THROUGH"
shall mean "to and including"; (iii) "HEREOF," "HEREIN" and "HEREUNDER" (and
similar terms) in this Agreement or any other Basic Document refer to this
Agreement or such other Basic Document, as the case may be, as a whole and
not to any particular provision of this Agreement or such other Basic
Document; (iv) "INCLUDING" (and similar terms) shall mean "including without
limitation" (and similarly for similar terms); (v) "OR" has the inclusive
meaning represented by the phrase "and/or"; (vi) "SATISFACTORY TO" any
Creditor shall mean in form, scope and substance and on
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terms and conditions reasonably satisfactory to such Creditor; and (vii)
references to "THE DATE HEREOF" shall mean the date first set forth above.
(c) In this Agreement unless the context clearly requires
otherwise, any reference to (i) an Annex, Exhibit or Schedule is to an Annex,
Exhibit or Schedule, as the case may be, attached to this Agreement and
constituting a part hereof, and (ii) a Section or other subdivision is to a
Section or such other subdivision of this Agreement.
(d) No doctrine of construction of ambiguities in agreements or
instruments against the interests of the party controlling the drafting
thereof shall apply to any Basic Document.
Section 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
2.01 LOANS.
(a) REVOLVING CREDIT LOANS. Each Revolving Credit Lender
severally agrees, on the terms and conditions of this Agreement, to make
revolving credit loans (the "REVOLVING CREDIT LOANS") to Borrower in Dollars
during the period from and including the date hereof to but not including the
Revolving Credit Commitment Termination Date in an aggregate principal amount
at any one time outstanding not exceeding the amount of the Revolving Credit
Commitment of such Lender as in effect from time to time; PROVIDED, HOWEVER,
that in no event shall the sum of the aggregate principal amount of (without
duplication) all Revolving Credit Loans then outstanding, PLUS the aggregate
amount of all Letter of Credit Liabilities at any time exceed the aggregate
amount of the Revolving Credit Commitments as in effect at such time.
Subject to the terms and conditions of this Agreement, during such period
Borrower may borrow, repay and reborrow the amount of the Revolving Credit
Commitments by means of Alternate Base Rate Loans and LIBOR Loans and may
Convert Revolving Credit Loans of one Type into Revolving Credit Loans of
another Type (as provided in Section 2.09) or Continue Revolving Credit Loans
of one Type as Revolving Credit Loans of the same Type (as provided in
Section 2.09).
(b) TERM LOANS. Each Term Loan Lender severally agrees, on the
terms and conditions of this Agreement, to make a single term loan to
Borrower in Dollars on the Closing Date in a principal amount equal to the
Term Loan Commitment of such Lender, such loan to be used to fund the IMSAMET
Acquisition (including fees and expenses) and effect the refinancing of the
Indebtedness set forth on SCHEDULE 7.01(i). Thereafter Borrower may Convert
Term Loans of one Type into Term Loans of another Type (as provided in
Section 2.09) or Continue Term Loans of one Type made on the Closing Date as
Term Loans of the same Type (as provided in Section 2.09).
Term Loans that are repaid or prepaid may not be reborrowed.
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(c) LIMIT ON LIBOR LOANS. No more than five separate Interest
Periods in respect of LIBOR Loans of either Class may be outstanding at any
one time. No LIBOR Loans shall be made on the Closing Date.
2.02 BORROWINGS. Borrower shall give the Administrative Agent
notice of each borrowing hereunder as provided in Section 4.05. The form of
such notice of borrowing shall be substantially in the form of EXHIBIT I.
Not later than 1:00 p.m. New York time on the date specified for each
borrowing hereunder, each Lender shall make available the amount of the Loan
or Loans to be made by it on such date to the Administrative Agent, at an
account specified by the Administrative Agent maintained at the Principal
Office, in immediately available funds, for account of Borrower. Each
borrowing of Revolving Credit Loans shall be made by each Revolving Credit
Lender PRO RATA based on such Lender's Revolving Credit Commitment Percentage
of each such Lender. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made
available to Borrower by depositing the same, in immediately available funds,
in an account of Borrower maintained with the Administrative Agent at the
Principal Office designated by Borrower.
2.03 LETTERS OF CREDIT. Subject to the terms and conditions
hereof, the Revolving Credit Commitments may be utilized, upon the request of
Borrower (which request, with respect to the Existing Letters of Credit, is
deemed given by virtue of the execution and delivery of this Agreement), in
addition to the Revolving Credit Loans provided for by Section 2.01(a), for
standby and commercial documentation letters of credit for the account of
Borrower; PROVIDED, HOWEVER, that in no event shall (i) the aggregate amount
of all Letter of Credit Liabilities, PLUS the aggregate principal amount of
the Revolving Credit Loans then outstanding exceed at any time the aggregate
Revolving Credit Commitments as in effect at such time, (ii) the outstanding
aggregate amount of all Letter of Credit Liabilities exceed $4.0 million,
(iii) the face amount of any Letter of Credit be less than $5,000, (iv) the
expiration date of any Letter of Credit extend beyond the earlier of (x) the
fifth Business Day preceding the Revolving Credit Commitment Termination Date
and (y) the date twelve months following the date of such issuance for
standby Letters of Credit or 180 days after the date of such issuance for
commercial Letters of Credit, unless the Majority Revolving Credit Lenders
have approved such expiry date in writing; PROVIDED, HOWEVER, that any
standby Letter of Credit may be automatically extendible for periods of up to
one year (but never beyond the fifth Business Day preceding the Revolving
Credit Commitment Termination Date then in effect) so long as such Letter of
Credit provides that the Issuing Lender retains an option satisfactory to the
Issuing Lender to terminate such Letter of Credit prior to each extension
date, unless all of the Revolving Credit Lenders have approved such expiry
date in writing or (v) the Issuing Lender issue any Letter of Credit after it
has received notice from Borrower or the Majority Revolving Credit Lenders
stating that a Default or Event of Default exists until such time as the
Issuing Lender shall have received written notice of (x) rescission of such
notice from the Majority Revolving Credit Lenders or (y) waiver of such
Default or Event of Default in accordance with this Agreement. The following
additional provisions shall apply to Letters of Credit:
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(a) Other than with respect to the Existing Letters of Credit for the
stated term thereof as of the date hereof, Borrower shall give the
Administrative Agent at least three Business Days' irrevocable prior notice
(effective upon receipt) specifying the date (which shall be no later than
thirty days preceding the Revolving Credit Termination Date) each Letter of
Credit is to be issued and describing in reasonable detail the proposed
terms of such Letter of Credit (including the beneficiary thereof)
(including whether such Letter of Credit is to be a commercial Letter of
Credit or a standby Letter of Credit). Upon receipt of any such notice,
the Administrative Agent shall advise the Issuing Lender of the contents
thereof.
(b) On each day during the period commencing with the issuance by the
Issuing Lender of any Letter of Credit and until such Letter of Credit
shall have expired or been terminated, the Revolving Credit Commitment of
each Revolving Credit Lender shall be deemed to be utilized for all
purposes hereof in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the then undrawn face amount of such Letter of
Credit. Each Revolving Credit Lender (other than the Issuing Lender)
agrees that, upon the issuance of any Letter of Credit hereunder (which,
with respect to the Existing Letters of Credit shall be deemed the Closing
Date), it shall automatically acquire a participation in the Issuing
Lender's liability under such Letter of Credit in an amount equal to such
Lender's Revolving Credit Commitment Percentage of such liability, and each
Revolving Credit Lender (other than the Issuing Lender) thereby shall
absolutely, unconditionally and irrevocably assume, as primary obligor and
not as surety, and shall be unconditionally obligated to the Issuing Lender
to pay and discharge when due, its Revolving Credit Commitment Percentage
of the Issuing Lender's liability under such Letter of Credit. The Issuing
Lender shall be deemed to hold a Letter of Credit Liability in an amount
equal to its retained interest in the related Letter of Credit after giving
effect to such acquisition by the Revolving Credit Lenders other than the
Issuing Lender of their participation interests.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Lender shall
promptly notify Borrower (through the Administrative Agent) of the amount
to be paid by the Issuing Lender as a result of such demand and the date
on which payment is to be made by the Issuing Lender to such beneficiary
in respect of such demand. Borrower hereby unconditionally agrees to pay
and reimburse the Issuing Lender for the amount of each demand for payment
under such Letter of Credit not later than the date on which the Issuing
Lender notifies Borrower that payment is to be made by the Issuing Lender
to the beneficiary thereunder (or the next Business Day if such notice is
received after 12:00 noon (New York time)).
(d) Forthwith upon its receipt of a notice referred to in clause (c)
of this Section 2.03, Borrower shall advise the Issuing Lender whether or
not Borrower intends to borrow hereunder to finance its obligation to
reimburse the Issuing Lender for the amount of the related demand for
payment and, if it does, submit a notice of such borrowing as provided in
Section 4.05. In the event that Borrower fails to so advise the
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Administrative Agent, or if Borrower fails to reimburse the Issuing Lender
for a demand for payment under a Letter of Credit by the date of notice of
such payment (or the next Business Day if received after 12:00 noon (New
York time) on such date), the Administrative Agent shall give each
Revolving Credit Lender prompt notice of the amount of the demand for
payment, specifying such Lender's Revolving Credit Commitment Percentage
of the amount of the related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Lender)
shall pay to the Administrative Agent for account of the Issuing Lender at
the Principal Office in Dollars and in immediately available funds, the
amount of such Lender's Revolving Credit Commitment Percentage of any
payment under a Letter of Credit upon notice by the Issuing Lender (through
the Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount. Each such Revolving Credit Lender's
obligation to make such payments to the Administrative Agent for account of
the Issuing Lender under this clause (e), and the Issuing Lender's right to
receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including (i) the failure of any
other Revolving Credit Lender to make its payment under this clause (e),
(ii) the financial condition of Borrower or the existence of any Default
or Event of Default or (iii) the termination of the Commitments. Each such
payment to the Issuing Lender shall be made without any offset, abatement,
withholding or reduction whatsoever. Nothing in this clause (e) shall be
deemed to prejudice the right of any Revolving Credit Lender to recover
from the Issuing Lender in the event of a wrongful payment of the type
described in the proviso to the last paragraph of this Section 2.03.
(f) Upon the making of each payment by a Revolving Credit Lender to
the Issuing Lender pursuant to clause (e) above in respect of any Letter
of Credit, such Lender shall, automatically and without any further action
on the part of the Administrative Agent, the Issuing Lender or such Lender,
acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Lender by Borrower hereunder
and under the Letter of Credit Documents relating to such Letter of Credit
and (ii) a participation in a percentage equal to such Lender's Revolving
Credit Commitment Percentage in any interest or other amounts payable by
Borrower hereunder and under such Letter of Credit Documents in respect of
such Reimbursement Obligation. Upon receipt by the Issuing Lender from
or for account of Borrower of any payment in respect of any Reimbursement
Obligation or any such interest or other amounts (including by way of
setoff or application of proceeds of any collateral security) the Issuing
Lender shall promptly pay to the Administrative Agent for account of each
Revolving Credit Lender entitled thereto, such Revolving Credit Lender's
Revolving Credit Commitment Percentage of such payment, each such payment
by the Issuing Lender to be made in the same money and funds in which
received by the Issuing Lender. In the event any payment received by the
Issuing Lender and so paid to the Revolving Credit Lenders hereunder is
rescinded or must otherwise be returned by the Issuing Lender, each
Revolving Credit Lender shall, upon the request of the Issuing Lender
(through the Administrative
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Agent), repay to the Issuing Lender (through the Administrative Agent) the
amount of such payment paid to such Lender, with interest at the rate
specified in clause (j) of this Section 2.03.
(g) Borrower shall pay to the Administrative Agent for the account of
the Issuing Lender in respect of each Letter of Credit a letter of credit
commission in an amount equal to (x) the rate PER ANNUM equal to the
Applicable Margin for Revolving Credit Loans that would be LIBOR Loans in
effect at the time of issuance thereof (which for the Existing Letters of
Credit shall initially be deemed the Closing Date), MINUS 0.25% PER ANNUM,
multiplied by (y) the daily average undrawn face amount of such Letter of
Credit (but in no event less than $500 per Letter of Credit on a PER ANNUM
basis) for the period from and including the date of issuance of such
Letter of Credit (which for the Existing Letters of Credit shall initially
be deemed the Closing Date) (i) in the case of a Letter of Credit which
expires in accordance with its terms, to and including such expiration
date and (ii) in the case of a Letter of Credit which is drawn in full or
is otherwise terminated other than on the stated expiration date of such
Letter of Credit, to but excluding the date such Letter of Credit is drawn
in full or is terminated, such fee to be non-refundable and to be paid in
arrears quarterly, on each Quarterly Date (or such minimum $500 PER ANNUM
fee to be paid on the date of issuance of the applicable Letter of Credit),
and on the earlier of the Revolving Credit Commitment Termination Date or
the date of the termination of the Revolving Credit Commitments or the date
of such termination, expiration or the Business Day subsequent to notice of
a drawing. The Issuing Lender shall pay to the Administrative Agent for
account of each Revolving Credit Lender (other than the Issuing Lender),
from time to time at reasonable intervals (but in any event at least
quarterly), but only to the extent actually received from Borrower, an
amount equal to such Lender's Revolving Credit Commitment Percentage of all
letter of credit commissions referred to in the first sentence of this
clause (g) received in respect of all periods after the Closing Date. In
addition, Borrower shall pay to the Administrative Agent for account of the
Issuing Lender only in respect of each Letter of Credit (other than the
Existing Letters of Credit (unless renewed)) a letter of credit issuance
fee in an amount equal to 1/4% PER ANNUM multiplied by the original face
amount from the issue date through the expiry date of such Letter of Credit
(but in no event less than $500 per Letter of Credit), such amount to be
payable on the date of issuance of such Letter of Credit, PLUS all charges,
costs and expenses in the amounts customarily charged by the Issuing Lender
from time to time in like circumstances with respect to the issuance of
each Letter of Credit and drawings and other transactions relating thereto.
(h) [Intentionally Omitted]
(i) To the extent that any Revolving Credit Lender fails to pay an
amount required to be paid pursuant to clause (e) or (f) of this Section
2.03 on the due date therefor, such Lender shall pay interest to the
Issuing Lender (through the Administrative Agent) on such amount from and
including such due date to but excluding the date such payment is made (i)
during the period from and including
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such due date to but excluding the date three Business Days thereafter, at
a rate PER ANNUM equal to the Federal Funds Rate (as in effect from time to
time) and (ii) thereafter, at a rate PER ANNUM equal to the Post-Default
Rate (as in effect from time to time).
(j) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder that would extend the expiry
date or increase the face amount thereof shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (x) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (y) each
Revolving Credit Lender shall have consented thereto.
(k) Notwithstanding the foregoing, the Issuing Lender shall not be
under any obligation to issue any Letter of Credit if at the time of such
issuance, any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain the Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to the Issuing Lender or any request or directive (whether or
not having the force of law) from any Governmental Authority shall
prohibit, or request that the Issuing Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Lender with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which the Issuing Lender
is not otherwise compensated) not in effect on the date hereof (or, with
respect to the Existing Letters of Credit, not in effect on the date of
issuance (other than deemed issuance hereunder on the Closing Date) thereof
if prior to the date hereof).
The obligations of Borrower under this Agreement and any Letter of Credit
Document to reimburse the Issuing Lender for a drawing under a Letter of
Credit, and to repay any drawing under a Letter of Credit converted into
Revolving Credit Loans, shall be unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement and each such
other Letter of Credit Document under all circumstances, including the
following: (i) any lack of validity or enforceability of this Agreement or
any Letter of Credit Document; (ii) the existence of any claim, setoff,
defense or other right that Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Person for whom
any such beneficiary or any such transferee may be acting), the Issuing
Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the Letter of Credit Documents or any
unrelated transaction; (iii) any draft, demand, certificate or 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; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit; or any defense based upon the failure of any drawing under
a Letter of Credit to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds
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of such drawing; or (iv) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Borrower or a Subsidiary Guarantor; PROVIDED, HOWEVER, that
Borrower shall not be obligated to reimburse the Issuing Lender for any
wrongful payment determined by a court of competent jurisdiction to have been
made by the Issuing Lender as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Issuing Lender or
which is not in accordance with the standard of care specified in the Uniform
Commercial Code of the State of New York. To the extent that any provision
of any Letter of Credit Document is inconsistent with the provisions of this
Section 2.03, the provisions of this Section 2.03 shall control.
2.04 TERMINATION AND REDUCTIONS OF COMMITMENTS. (a) The
aggregate amount of the Revolving Credit Commitments shall be automatically
and permanently reduced to zero on the Revolving Credit Commitment
Termination Date.
The aggregate amount of the Term Loan Commitments shall be
automatically and permanently reduced to zero on the Closing Date immediately
after the making of the Loans on the Closing Date.
(b) Borrower shall have the right at any time or from time to time
(i) so long as no Revolving Credit Loans or Letter of Credit Liabilities will
be outstanding as of the date specified for termination, to terminate the
Revolving Credit Commitments or (ii) to reduce the aggregate amount of the
Unutilized Revolving Credit Commitments of all the Revolving Credit Lenders;
PROVIDED, HOWEVER, that (x) Borrower shall give notice of each such
termination or reduction as provided in Section 4.05 and (y) each partial
reduction shall be in an aggregate amount at least equal to $1.0 million (or
a larger multiple of $100,000).
(c) The Commitments once terminated or reduced may not be reinstated.
2.05 FEES. (a) Borrower shall pay to the Administrative Agent
for the account of each Revolving Credit Lender a commitment fee on the daily
average amount of such Lender's Unutilized Revolving Credit Commitment, for
the period from and including the Closing Date to but not including the
earlier of the date such Revolving Credit Commitment is terminated and the
Revolving Credit Commitment Termination Date, at a rate PER ANNUM equal to
the Applicable Commitment Fee Percentage. Any accrued commitment fee under
this Section 2.05(a) shall be payable in arrears on each Quarterly Date and
on the earlier of the date the Revolving Credit Commitments are terminated
and the Revolving Credit Commitment Termination Date.
(b) Borrower shall pay to the Administrative Agent for its own
account a nonrefundable administrative fee pursuant to the terms of the
Administrative Agent's Fee Letter.
2.06 LENDING OFFICES. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
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2.07 SEVERAL OBLIGATIONS. The failure of any Lender to make any
Loan to be made by it on the date specified therefor shall not relieve any
other Lender of its obligation to make its Loan on such date, but neither any
Lender nor the Administrative Agent shall be responsible for the failure of
any other Lender to make a Loan to be made by such other Lender, and (except
as otherwise provided in Section 4.06) no Lender shall have any obligation to
the Administrative Agent or any other Lender for the failure by such Lender
to make any Loan required to be made by such Lender.
2.08 NOTES; REGISTER. (a) The Revolving Credit Loans made by
each Revolving Credit Lender shall be evidenced by a single promissory note
of Borrower substantially in the form of EXHIBIT A-1, dated the date hereof,
payable to such Lender and otherwise duly completed.
(b) The Term Loans made by each Term Loan Lender shall be
evidenced by a single promissory note of Borrower substantially in the form
of EXHIBIT A-2, dated the date hereof, payable to such Lender and otherwise
duly completed.
(c) The date, amount, Type, interest rate and duration of Interest
Period (if applicable) of each Loan of each Class made by each Lender to
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of any Note
evidencing the Loans of such Class held by it, endorsed by such Lender on the
schedule attached to such Note or any continuation thereof; PROVIDED,
HOWEVER, that the failure of such Lender to make any such recordation or
endorsement shall not affect the obligations of Borrower to make a payment
when due of any amount owing hereunder or under such Note.
(d) Borrower hereby designates the Administrative Agent to serve
as Borrower's agent, solely for purposes of this Section 2.08, to maintain a
register (the "REGISTER") on which it will record the Commitment from time to
time of each of the Lenders, the Loans made by each of the Lenders and each
repayment in respect of the principal amount of the Loans of each Lender.
Failure to make any such recordation or any error in such recordation shall
not affect Borrower's obligations in respect of such Loans. The entries in
the Register shall be conclusive, in the absence of manifest error, and
Borrower, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement
and the other Basic Documents, notwithstanding any notice to the contrary.
The Register shall be available for inspection by Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
2.09 OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF
LOANS. Subject to Section 4.04, Borrower shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or Continue
Loans of one Type as Loans of the same Type, at any time or from time to time
to be applied as specified by Borrower; PROVIDED, HOWEVER, that: (a)
Borrower shall give the Administrative Agent notice of each such prepayment,
Conversion or Continuation as provided in Section 4.05 (and, upon the date
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specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder); (b) LIBOR Loans may be prepaid or
Converted only on the last day of an Interest Period for such Loans; and (c)
prepayments of the Term Loans pursuant to this Section 2.09 shall be applied
PRO RATA among the remaining Amortization Payments based upon the remaining
unpaid amounts thereof. Each notice of Conversion or Continuation shall be
substantially in the form of EXHIBIT J.
Notwithstanding the foregoing, and without limiting the rights and
remedies of the Lenders under Section 10, in the event that any Event of
Default shall have occurred and be continuing, the Administrative Agent may
(and at the request of the Majority Lenders shall) suspend the right of
Borrower to Convert any Loan into a LIBOR Loan, or to Continue any Loan as a
LIBOR Loan, in which event all Loans shall be Converted (on the last day(s)
of the respective Interest Periods therefor) or Continued, as the case may
be, as Alternate Base Rate Loans.
2.10 MANDATORY PREPAYMENTS. (a) Borrower shall prepay the Term
Loans as follows (each such prepayment to be effected in each case in the
manner, order and to the extent specified in subsection (b) below of this
Section 2.10):
(i) CASUALTY EVENTS. On the date on which Borrower or any
Subsidiary receives any Net Available Proceeds from any Casualty Event,
in an aggregate principal amount equal to 100% of such Net Available
Proceeds; PROVIDED, HOWEVER, that so long as no Default or Event of
Default then exists, such Net Available Proceeds shall not be required to
be so applied on such date to the extent that Borrower has delivered an
Officers' Certificate to the Administrative Agent on or prior to such date
stating that such proceeds shall be used to (1) repair, replace or restore
any Property in respect of which such Net Available Proceeds were paid or
(2) fund the expansion or substitution of other Property used or usable in
the business of Borrower and the Subsidiaries, in each case within 360 days
following the date of the receipt of such Net Available Proceeds; PROVIDED,
FURTHER, HOWEVER, that (i) all such Net Available Proceeds shall be held in
the Collateral Account and released therefrom only in accordance with the
terms of the Security Agreement and (ii) if all or any portion of such Net
Available Proceeds not required to be applied to the prepayment of Term
Loans pursuant to the preceding proviso is not so used within 360 days
after the date of the receipt of such Net Available Proceeds, such
remaining portion shall be applied on the last day of such period as
specified in Section 2.10(b).
(ii) EQUITY ISSUANCE; DEBT ISSUANCE. Upon any Equity Issuance or any
Debt Issuance after the Closing Date, in an aggregate principal amount
equal to 50% of the Net Available Proceeds of such Equity Issuance or 100%
of the Net Available Proceeds of such Debt Issuance, as the case may be;
PROVIDED, HOWEVER, that if at the time of receipt of such Net Available
Proceeds the Leverage Ratio is less than 2.0:1.0 as evidenced in an
Officers' Certificate delivered to the Administrative Agent, such Net
Available Proceeds shall not be required to be applied to the prepayment of
the Term Loans.
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(iii) DISPOSITION EVENTS. Upon the date of receipt of any
Net Available Proceeds from any Disposition Event, in an aggregate
principal amount equal to 100% of the Net Available Proceeds from such
Disposition Event; PROVIDED, HOWEVER, that (i) the Net Available Proceeds
from any Disposition Event permitted by Section 9.06(j) or (k) shall in
each case not be required to be applied as provided herein on such date
if and to the extent that (1) no Default or Event of Default then exists
and (2) Borrower delivers an Officers' Certificate to the Administrative
Agent on or prior to such date stating that such Net Available Proceeds
shall be reinvested in capital assets of Borrower or any Subsidiary in
each case within 360 days following the date of such Disposition Event
(which certificate shall set forth the estimates of the proceeds to be so
expended and) and (ii) all such Net Available Proceeds shall be held in
the Collateral Account and released therefrom only in accordance with the
terms of the Security Agreement; PROVIDED, FURTHER, HOWEVER, that if all
or any portion of such Net Available Proceeds not so applied as provided
herein is not so used within such 360 day period, such remaining portion
shall be applied on the last day of such period as specified in Section
2.10(b) (it being understood that the foregoing shall in no way affect
the obligation of Borrower to obtain the consent of the Majority Lenders
if required pursuant to this Agreement).
(iv) EXCESS CASH FLOW. Not later than 120 days after the
end of each fiscal year of Borrower commencing with the fiscal year ended
December 31, 1997, in an aggregate principal amount equal to 50% of the
Excess Cash Flow for such fiscal year; PROVIDED, HOWEVER, that if at the
end of any fiscal year the Leverage Ratio is less than 2.0:1.0 as
evidenced in an Officers' Certificate delivered to the Administrative
Agent, the Excess Cash Flow for such fiscal year shall not be required to
be applied to the prepayment of the Term Loans.
(v) RECOVERY EVENTS. On the date on which Borrower or
any Subsidiary receives any Net Available Proceeds from any Taking or
Destruction or loss of title to any Mortgaged Real Property or Real
Property, in an aggregate principal amount equal to 100% of such Net
Available Proceeds; PROVIDED, HOWEVER, that (i) so long as no Default or
Event of Default then exists and such Net Available Proceeds do not
exceed $25.0 million, such Net Available Proceeds shall not be required
to be so applied on such date to the extent that Borrower has delivered
an Officers' Certificate to the Administrative Agent on or prior to such
date stating that such proceeds shall be used to (1) repair, replace or
restore any Mortgaged Real Property (or, if received in respect of Real
Property which is not Mortgaged Real Property, Real Property) in respect
of which such Net Available Proceeds were paid or (2) fund the purchase
of substitute or additional Mortgaged Real Property (or Real Property if
such Net Available Proceeds were received in respect of Real Property
which was not Mortgaged Real Property), in each case within 360 days
following the date of the receipt of such Net Available Proceeds and (ii)
all such Net Available Proceeds shall be held in the Collateral Account
and released therefrom only in accordance with the terms of the Security
Agreement; PROVIDED, FURTHER, HOWEVER, that (subject to waiver of such
condition by the Majority Lenders) (i) if the amount of such Net
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Available Proceeds exceeds $25.0 million, then the entire amount and not
just the portion in excess of $25.0 million shall be applied and (ii) if
all or any portion of such Net Available Proceeds not required to be
applied to the prepayment of Term Loans pursuant to the preceding proviso
is not so used within 360 days after the date of the receipt of such Net
Available Proceeds, such remaining portion shall be applied on the last
day of such period as specified in Section 2.10(b).
(b) APPLICATION. The amount of any required prepayments described
in Section 2.10(a) shall be applied to the reduction of Amortization Payments
on the Term Loans required by Section 3.01(b) PRO RATA among the remaining
Amortization Payments.
Notwithstanding the foregoing, if the amount of any prepayment of
Loans required under this Section 2.10 shall be in excess of the amount of the
Alternate Base Rate Loans at the time outstanding, only the portion of the
amount of such prepayment as is equal to the amount of such outstanding
Alternate Base Rate Loans shall be immediately prepaid and, at the election of
Borrower, the balance of such required prepayment shall be either (i)
deposited in the Collateral Account and applied to the prepayment of LIBOR
Loans on the last day of the then next-expiring Interest Period for LIBOR
Loans or (ii) prepaid immediately, together with any amounts owing to the
Lenders under Section 5.05. Notwithstanding any such deposit in the Collateral
Account, interest shall continue to accrue on such Loans until prepayment.
(c) REVOLVING CREDIT EXTENSION REDUCTIONS. Until the Revolving
Credit Commitment Termination Date, Borrower shall from time to time
immediately prepay the Revolving Credit Loans (and/or provide cover for Letter
of Credit Liabilities as specified in Section 2.10(d)) in such amounts as
shall be necessary so that at all times the aggregate outstanding amount of
the Revolving Credit Loans, PLUS the aggregate outstanding Letter of Credit
Liabilities shall not exceed the aggregate Revolving Credit Commitments, such
amount to be applied, FIRST, to Revolving Credit Loans outstanding and,
SECOND, as cover for Letter of Credit Liabilities outstanding as specified in
Section 2.10(d).
(d) COVER FOR LETTER OF CREDIT LIABILITIES. In the event that
Borrower shall be required pursuant to this Section 2.10 to provide cover for
Letter of Credit Liabilities, Borrower shall effect the same by paying to the
Administrative Agent immediately available funds in an amount equal to the
required amount, which funds shall be retained by the Administrative Agent in
the Collateral Account (as provided in the Security Agreement as collateral
security in the first instance for the Letter of Credit Liabilities) until
such time as all Letters of Credit shall have been terminated and all of the
Letter of Credit Liabilities paid in full.
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Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) REVOLVING CREDIT LOANS. Borrower hereby promises to pay to the
Administrative Agent for the account of each Revolving Credit Lender the
entire outstanding principal amount of such Revolving Credit Lender's
Revolving Credit Loans, and each Revolving Credit Loan shall mature, on the
Revolving Credit Commitment Termination Date.
(b) TERM LOANS. Borrower hereby promises to pay to the
Administrative Agent for the account of the Term Loan Lenders, in repayment of
the principal of the Term Loans, the following amounts on the following dates
(subject to adjustment for any prepayments required by Section 2.10 to the
extent actually made):
--------------------------------------------------
--------------------------------------------------
EACH PRINCIPAL PAYMENT DATE IN AMOUNT
--------------------------------------------------
Calendar Year 1997 $ 1,375,000
--------------------------------------------------
Calendar Year 1998 $ 2,625,000
--------------------------------------------------
Calendar Year 1999 $ 3,750,000
--------------------------------------------------
Calendar Year 2000 $ 4,250,000
--------------------------------------------------
Calendar Year 2001 $ 4,500,000
--------------------------------------------------
Calendar Year 2002 $ 4,750,000
--------------------------------------------------
Calendar Year 2003 $ 5,000,000
--------------------------------------------------
--------------------------------------------------
3.02 INTEREST. Borrower hereby promises to pay to the
Administrative Agent for the account of each Lender interest on the unpaid
principal amount of each Loan made by such Lender for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full, at the following rates PER ANNUM:
(a) during such periods as such Loan is an Alternate Base Rate
Loan, the Alternate Base Rate (as in effect from time to time), PLUS the
Applicable Margin and
(b) during such periods as such Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Loan for such
Interest Period, PLUS the Applicable Margin.
Notwithstanding the foregoing, Borrower hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, on any
Reimbursement Obligation held by such Lender and
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on any other amount payable by Borrower hereunder or under the Notes held by
such Lender to or for account of such Lender, that shall not be paid in full
when due (whether at stated maturity, by acceleration, by mandatory prepayment
or otherwise), for the period from and including the due date thereof to but
excluding the date the same is paid in full.
Accrued interest on each Loan shall be payable (i) in the case of an
Alternate Base Rate Loan, quarterly on the Quarterly Dates, (ii) in the case
of a LIBOR Loan, on the last day of each Interest Period therefor and, if such
Interest Period is longer than three months, at three-month intervals
following the first day of such Interest Period and (iii) in the case of any
LIBOR Loan, upon the payment or prepayment thereof or the Conversion of such
Loan to a Loan of another Type (but only on the principal amount so paid,
prepaid or Converted), except that interest payable at the Post-Default Rate
shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Administrative Agent shall give notice thereof to the Lenders to which
such interest is payable and to Borrower.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS. (a) Except to the extent otherwise provided
herein, all payments of principal, interest, Reimbursement Obligations and
other amounts to be made by Borrower under this Agreement and the Notes, and,
except to the extent otherwise provided therein, all payments to be made by
the Obligors under any other Basic Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
the Administrative Agent at its account at the Principal Office, not later
than 1:00 p.m. New York time on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day).
(b) Borrower shall, at the time of making each payment under this
Agreement or any Note for the account of any Lender, specify to the
Administrative Agent (which shall so notify the intended recipient(s) thereof)
the Loans, Reimbursement Obligations or other amounts payable by Borrower
hereunder to which such payment is to be applied (and in the event that
Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, the Administrative Agent may distribute such payment to the
Lenders for application in such manner as it or the Majority Lenders, subject
to Section 4.02, may determine to be appropriate).
(c) Except to the extent otherwise provided in the second sentence
of Section 2.03(g), each payment received by the Administrative Agent under
this Agreement or any Note for the account of any Lender shall be paid by the
Administrative Agent to such Lender, in immediately available funds, (x) if
the payment was actually received by the Administrative Agent prior to 1:00
p.m. (New York time) on any day, on such day and (y) if the payment was
actually received by the Administrative Agent after 1:00 p.m. (New York time)
on any day, on the following Business Day (it being understood that to the
extent that any such payment is not made in full by the Administrative Agent,
the Administrative Agent shall
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pay to such Lender, upon demand, interest at the Federal Funds Rate from the
date such amount was required to be paid to such Lender pursuant to the
foregoing clauses until the date the Administrative Agent pays such Lender the
amount).
(d) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable
for any principal so extended for the period of such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders
under Section 2.01 shall be made from the relevant Lenders, each payment of
commitment fee under Section 2.05 in respect of Commitments of a particular
Class shall be made for account of the relevant Lenders, and each termination
or reduction of the amount of the Commitments of a particular Class under
Section 2.04 shall be applied to the respective Commitments of such Class of
the relevant Lenders, PRO RATA according to the amounts of their respective
Commitments of such Class; (b) except as otherwise provided in Section 5.04,
LIBOR Loans of any Class having the same Interest Period shall be allocated
PRO RATA among the relevant Lenders according to the amounts of their
respective Revolving Credit and Term Loan Commitments (in the case of the
making of Loans) or their respective Revolving Credit and Term Loans (in the
case of Conversions and Continuations of Loans); (c) each payment or
prepayment of principal of Revolving Credit Loans or Term Loans by Borrower
shall be made for account of the relevant Lenders PRO RATA in accordance with
the respective unpaid outstanding principal amounts of the Loans of such Class
held by them; and (d) each payment of interest on Revolving Credit Loans and
Term Loans by Borrower shall be made for account of the relevant Lenders PRO
RATA in accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders.
4.03 COMPUTATIONS. Interest on LIBOR Loans and commitment fee and
letter of credit fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable and interest on Alternate Base Rate
Loans and Reimbursement Obligations shall be computed on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed (including the
first day but excluding the last day) occurring in the period for which
payable. Notwithstanding the foregoing, for each day that the Alternate Base
Rate is calculated by reference to the Federal Funds Rate, interest on
Alternate Base Rate Loans and Reimbursement Obligations shall be computed on
the basis of a year of 360 days and actual days elapsed (including the first
day but excluding the last day).
4.04 MINIMUM AMOUNTS. Except for mandatory prepayments made
pursuant to Section 2.10 and Conversions or prepayments made pursuant to
Section 5.04, each borrowing, Conversion and prepayment of principal of Loans
shall be in an amount at least equal to $1.0 million with respect to Alternate
Base Rate Loans and $1.0 million with respect to LIBOR Loans and in multiples
of $100,000 in excess thereof (borrowings, Conversions or prepayments of or
into Loans of different Types or, in the case of LIBOR Loans, having
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different Interest Periods at the same time hereunder to be deemed separate
borrowings, Conversions and prepayments for purposes of the foregoing, one for
each Type or Interest Period). Anything in this Agreement to the contrary
notwithstanding, the aggregate principal amount of LIBOR Loans having the same
Interest Period shall be in an amount at least equal to $10.0 million and in
multiples of $500,000 in excess thereof and, if any LIBOR Loans would
otherwise be in a lesser principal amount for any period, such Loans shall be
Alternate Base Rate Loans during such period.
4.05 CERTAIN NOTICES. Notices by Borrower to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative
Agent not later than 11:00 a.m. New York time on the number of Business Days
prior to the date of the relevant termination, reduction, borrowing,
Conversion, Continuation or prepayment or the first day of such Interest
Period specified below:
-------------------------------------------------------------------
-------------------------------------------------------------------
NUMBER OF BUSINESS
NOTICE DAYS PRIOR
-------------------------------------------------------------------
Termination or reduction of Commitments 3
-------------------------------------------------------------------
Borrowing or optional prepayment of, or
Conversions into, Alternate Base Rate Loans same day
-------------------------------------------------------------------
Borrowing or optional prepayment of, Conversions
into, Continuations as, or duration of Interest
Period for, LIBOR Loans 3
-------------------------------------------------------------------
-------------------------------------------------------------------
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or prepayment shall specify the Class of
Loans to be borrowed, Converted, Continued or prepaid and the amount (subject
to Section 4.04) and Type of each Loan to be borrowed, Converted, Continued or
prepaid and the date of borrowing, Conversion, Continuation or prepayment
(which shall be a Business Day). Each such notice of the duration of an
Interest Period shall specify the Loans to which such Interest Period is to
relate. The Administrative Agent shall promptly notify the Lenders of the
contents of each such notice. In the event that Borrower fails to select the
Type of Loan, or the duration of any Interest Period for any LIBOR Loan,
within the time period and otherwise as provided in this Section 4.05, such
Loan (if outstanding as a LIBOR Loan) will be automatically Converted into an
Alternate Base Rate Loan on the last day of the then current Interest Period
for such Loan or (if outstanding as an Alternate Base Rate Loan) will remain
as, or (if not then outstanding) will be made as, an Alternate Base Rate Loan.
4.06 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have received written notice from a Lender or
Borrower (the
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"PAYOR") prior to the time on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of Borrower) a payment to the
Administrative Agent for the account of one or more of the Lenders hereunder
(such payment being herein called the "REQUIRED PAYMENT"), which notice shall
be effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date (the "ADVANCE DATE") such amount was so made
available by the Administrative Agent until the date the Administrative Agent
recovers such amount at a rate PER ANNUM equal to the Federal Funds Rate for
such day and, if such recipient(s) shall fail promptly to make such payment,
the Administrative Agent shall be entitled to recover such amount, on demand,
from the Payor, together with interest as aforesaid; PROVIDED, HOWEVER, that
if neither the recipient(s) nor the Payor shall return the Required Payment to
the Administrative Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall each
be obligated to pay interest on the Required Payment as follows (without
double recovery):
(i) if the Required Payment shall represent a payment to
be made by Borrower to the Lenders, Borrower and the recipient(s) shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment at the Post-Default Rate (without
duplication of the obligation of Borrower under Section 3.02 to pay
interest on the Required Payment at the Post-Default Rate), it being
understood that the return by the recipient(s) of the Required Payment to
the Administrative Agent shall not limit such obligation of Borrower
under Section 3.02 to pay interest at the Post-Default Rate in respect of
the Required Payment and
(ii) if the Required Payment shall represent proceeds of a
Loan to be made by the Lenders to Borrower, the Payor and Borrower shall
each be obligated retroactively to the Advance Date to pay interest in
respect of the Required Payment pursuant to Section 3.02, it being
understood that the return by Borrower of the Required Payment to the
Administrative Agent shall not limit any claim Borrower may have against
the Payor in respect of such Required Payment.
4.07 RIGHT OF SETOFF; SHARING OF PAYMENTS, ETC. (a) Each Obligor
agrees that, in addition to (and without limitation of) any right of setoff,
banker's lien or counterclaim a Lender may otherwise have, each Lender shall
be entitled, at its option (to the fullest extent permitted by law), to set
off and apply any deposit (general or special, time or demand, provisional or
final), or other indebtedness, held by it for the credit or account of such
Obligor at any of its offices, in Dollars or in any other currency, against
any principal of or interest on any of such Lender's Loans, Reimbursement
Obligations or any other amount payable to such Lender hereunder that is not
paid when due (regardless of whether such deposit or
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other indebtedness is then due to such Obligor), in which case it shall
promptly notify such Obligor and the Administrative Agent thereof; PROVIDED,
HOWEVER, that such Lender's failure to give such notice shall not affect the
validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other
than pursuant to Section 5) any amount hereunder (whether by voluntary
payment, by realization upon security, by the exercise of the right of setoff
or banker's lien, by counterclaim or cross action, by the enforcement of any
right under the Basic Documents, or otherwise) which is applicable to the
payment of the principal of, or interest on, the Loans, Reimbursement
Obligations or fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
amounts then owed and due to such Lender bears to the total of such amounts
then owed and due to all of the Lenders immediately prior to such receipt,
then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations of the respective Obligor to such Lenders in such amount as shall
result in a proportional participation by all of the Lenders in such amount;
PROVIDED, HOWEVER, that if all or any portion of such excess amount is
thereafter recovered from such Lender, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest. Borrower consents to the foregoing arrangements.
(c) Borrower agrees that any Lender so purchasing such a
participation may exercise all rights of setoff, banker's lien, counterclaim
or similar rights with respect to such participation as fully as if such
Lender were a direct holder of Loans or other amounts (as the case may be)
owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Obligor. If, under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section 4.07 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section 4.07 to share in the benefits of any recovery on such
secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS. (a) If the adoption of, or any change in,
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority or the
NAIC made subsequent to the date hereof (or, with respect to the Existing
Letters of Credit, made subsequent to their date of issuance (without regard
to any deemed issuance on the Closing Date for purposes of Section 2.03) if
before the date hereof):
<PAGE>
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(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of Credit
or any Lender's participation therein, any Letter of Credit Document or
any LIBOR Loan made by it or change the basis of taxation of payments to
such Lender in respect thereof (except for taxes covered by Section 5.06
and changes in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not otherwise
included in the determination of the LIBOR Rate hereunder, including,
without limitation, the imposition of any reserves with respect to the
Eurocurrency Liabilities under Regulation D; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining LIBOR Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof then, in any such case, Borrower shall promptly pay such Lender, upon
its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this subsection, it shall
promptly notify Borrower, through the Administrative Agent, of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts pursuant to this Section 5.01 submitted by such Lender, through the
Administrative Agent, to Borrower shall be conclusive in the absence of
clearly demonstrable error. This covenant shall survive the termination of
this Agreement and the payment of the Notes all other amounts payable
hereunder.
(b) In the event that any Lender shall have determined that the
adoption of any law, rule, regulation or guideline regarding capital adequacy
(or any change therein or in the interpretation or application thereof) or
compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any central bank or Governmental Authority, including,
without limitation, the issuance of any final rule, regulation or guideline,
does or shall have the effect of reducing the rate of return on such Lender's
or such corporation's capital as a consequence of its obligations hereunder or
under any Letter of Credit to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, after submission by such Lender to Borrower
(with a copy to the Administrative Agent) of a written request therefor,
Borrower shall promptly pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
<PAGE>
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(c) Each Lender shall notify Borrower of any event occurring after
the date of this Agreement that will entitle such Lender to compensation under
paragraph (a) or (b) of this Section 5.01 as promptly as practicable, but in
any event within 120 days after such Lender obtains actual knowledge thereof;
PROVIDED, HOWEVER, that if any Lender fails to give such notice within 120
days after it obtains actual knowledge of such an event, such Lender shall,
with respect to compensation payable pursuant to this Section 5.01 in respect
of any costs resulting from such event, only be entitled to payment under this
Section 5.01 for costs incurred from and after the date 120 days prior to the
date that such Lender does give such notice. Each Lender will furnish to
Borrower a certificate setting forth the basis, amount and reasonable detail
of computation of each request by such Lender for compensation under paragraph
(a) or (b) of this Section 5.01, which certificate shall, except for
demonstrable error, be final, conclusive and binding for all purposes.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any LIBOR Base Rate
for any Interest Period:
(i) the Administrative Agent determines, which
determination shall be conclusive, that quotations of interest rates for
the relevant deposits referred to in the definition of "LIBOR Base Rate"
in Section 1.01 are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for
LIBOR Loans as provided herein; or
(ii) if the related Loans are Revolving Credit Loans, the
Majority Revolving Credit Lenders or, if the related Loans are Term
Loans, the Majority Term Lenders determine, which determination shall be
conclusive, that the relevant rates of interest referred to in the
definition of "LIBOR Base Rate" in Section 1.01 upon the basis of which
the rate of interest for LIBOR Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to the applicable
Lenders of making or maintaining LIBOR Loans for such Interest Period,
then the Administrative Agent shall give Borrower and each Lender prompt
notice thereof, and so long as such condition remains in effect, the affected
Lenders shall be under no obligation to make additional LIBOR Loans, to
Continue LIBOR Loans or to Convert Alternate Base Rate Loans into LIBOR Loans
and Borrower shall, on the last day(s) of the then current Interest Period(s)
for the outstanding LIBOR Loans, either prepay such Loans or Convert such
Loans into Alternate Base Rate Loans in accordance with Section 2.09.
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender or
its Applicable Lending Office to honor its obligation to make or maintain
LIBOR Loans hereunder (and, in the sole opinion of such Lender, the
designation of a different Applicable Lending Office would either not avoid
such unlawfulness or would be disadvantageous to such Lender), then such
Lender shall promptly notify Borrower thereof (with a copy to the
Administrative Agent) and such Lender's
<PAGE>
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obligation to make or Continue, or to Convert Loans of any other Type into,
LIBOR Loans shall be suspended until such time as such Lender may again make
and maintain LIBOR Loans (in which case the provisions of Section 5.04 shall
be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender
to make LIBOR Loans or to Continue, or to Convert Alternate Base Rate Loans
into, LIBOR Loans shall be suspended pursuant to Section 5.03, such Lender's
LIBOR Loans shall be automatically Converted into Alternate Base Rate Loans on
the last day(s) of the then current Interest Period(s) for such LIBOR Loans
(or on such earlier date as such Lender may specify to Borrower with a copy to
the Administrative Agent as is required by law) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.03 which gave rise to such Conversion no longer exist:
(i) to the extent that such Lender's LIBOR Loans have
been so Converted, all payments and prepayments of principal which would
otherwise be applied to such Lender's LIBOR Loans shall be applied
instead to its Alternate Base Rate Loans; and
(ii) all Loans which would otherwise be made or Continued
by such Lender as LIBOR Loans shall be made or Continued instead as
Alternate Base Rate Loans and all Alternate Base Rate Loans of such
Lender which would otherwise be Converted into LIBOR Loans shall remain
as Alternate Base Rate Loans.
If such Lender gives notice to Borrower with a copy to the Administrative
Agent that the circumstances specified in Section 5.03 which gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section 5.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when LIBOR Loans are outstanding, such Lender's
Alternate Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR
Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding LIBOR Loans and by such Lender are held PRO RATA
(as to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
5.05 COMPENSATION.
(a) Borrower agrees to indemnify each Lender and to hold each
Lender harmless from any actual or direct loss or expense which such Lender
may sustain or incur as a consequence of (1) default by Borrower in payment
when due of the principal amount of or interest on any LIBOR Loan, (2) default
by Borrower in making a borrowing of, Conversion into or Continuation of LIBOR
Loans after Borrower has given a notice requesting the same in accordance with
the provisions of this Agreement, (3) default by Borrower in making any
prepayment after Borrower has given a notice thereof in accordance with the
provisions of the Agreement or (4) the making of a payment or a prepayment of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto, including in each case, any such loss (including loss of
margin) or expense arising from the reemployment of funds
<PAGE>
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obtained by it or from fees payable to terminate the deposits from which such
funds were obtained.
(b) For the purpose of calculation of all amounts payable to a
Lender under this Section 5.05 each Lender shall be deemed to have actually
funded its relevant LIBOR Loan through the purchase of a deposit bearing
interest at the LIBOR Rate in an amount equal to the amount of the LIBOR Loan
and having a maturity comparable to the relevant Interest Period; PROVIDED,
HOWEVER, that each Lender may fund each of its LIBOR Loans in any manner it
seems fit, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection. Any Lender requesting
compensation pursuant to this Section 5.05 will furnish to the Administrative
Agent and Borrower a certificate setting forth the basis and amount of such
request and such certificate, absent manifest error, shall be conclusive.
This covenant shall survive the termination of this Agreement and the payment
of the Notes and all other amounts payable hereunder.
5.06 NET PAYMENTS. (a) All payments made by Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 5.06(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income or net profits of a Lender
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or Applicable Lending Office of
such Lender is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as "COVERED TAXES"). If any Covered
Taxes are so levied or imposed, Borrower agrees to pay the full amount of such
Covered Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Covered Taxes, will not be
less than the amount provided for herein or in such Note. If any amounts are
payable in respect of Covered Taxes pursuant to the preceding sentence,
Borrower agrees to reimburse each Lender, upon the written request of such
Lender, for taxes imposed on or measured by the net income or net profits of
such Lender pursuant to the laws of the jurisdiction in which the principal
office or Applicable Lending Office of such Lender is located or under the
laws of any political subdivision or taxing authority of any such jurisdiction
in which the principal office or Applicable Lending Office of such Lender is
located and for any withholding of taxes as such Lender shall determine are
payable by, or withheld from, such Lender in respect of such amounts so paid
to or on behalf of such Lender pursuant to the preceding sentence and in
respect of any amounts paid to or on behalf of such Lender pursuant to this
sentence. Borrower will furnish to the Administrative Agent within 45 days
after the date the payment of any Covered Taxes is due pursuant to applicable
law certified copies of tax receipts evidencing such payment by Borrower.
Borrower agrees to indemnify and hold harmless each Lender, and reimburse such
Lender upon its written request, for the amount of any Covered Taxes so levied
or
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imposed and paid by such Lender and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto.
(b) Each Lender that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) agrees to deliver to Borrower
and the Administrative Agent on or prior to the Closing Date or in the case
of a Lender that is an assignee or transferee of an interest under this
Agreement pursuant to Section 12.06 (unless the respective Lender was already
a Lender hereunder immediately prior to such assignment or transfer), on the
date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be
made under this Agreement and under any Note, or (ii) if the Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause
(i) above, (x) a certificate substantially in the form of EXHIBIT H (any such
certificate, a "SECTION 5.06 CERTIFICATE") and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8 (or successor
form) certifying to such Lender's entitlement to a complete exemption from
United States withholding tax with respect to payments to be made under this
Agreement and under any Note. In addition, each Lender agrees that from time
to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in
any material respect, it will deliver to Borrower and the Administrative
Agent two new accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001, or Form W-8 and a Section 5.06
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify
Borrower and the Administrative Agent of its inability to deliver any such
Form or Certificate. Notwithstanding anything to the contrary contained in
Section 5.06(a), but subject to Section 12.06(b) and the immediately
succeeding sentence, (x) Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold income or similar taxes
imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender which is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal
income tax purposes to the extent that such Lender has not provided to
Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) Borrower shall not be
obligated pursuant to Section 4.04(a) hereof to gross up payments to be made
to a Lender in respect of income or similar taxes imposed by the United
States if (I) such Lender has not provided to Borrower the Internal Revenue
Service Forms required to be provided to Borrower pursuant to this Section
5.06(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence
or elsewhere in this Section 5.06 and except as set forth in Section
12.06(b), Borrower agrees to pay additional amounts and to indemnify each
Lender in the manner set forth in Section 5.06(a) (without regard to the
identity of the jurisdiction requiring
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the deduction or withholding) in respect of any amounts deducted or withheld
by it as described in the immediately preceding sentence as a result of any
changes after the Closing Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof,
relating to the deducting or withholding of income or similar Covered Taxes.
(c) In addition, Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Note
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (other than Oklahoma mortgage recording tax)
(hereinafter referred to as "OTHER TAXES").
Section 5.07 REPLACEMENT OF LENDER. If any Lender requests
compensation pursuant to Section 5.01 or 5.06, or such Lender's obligation to
make or Continue, or to Convert Loans of any other Type into, LIBOR Loans
shall be suspended pursuant to Section 5.03, then, unless a Default shall
have occurred and be continuing, Borrower, upon three Business Days notice,
may require that such Lender (a "REPLACED LENDER") transfer all of its right,
title and interest under this Agreement and such Replaced Lender's Notes to
any bank (a "PROPOSED LENDER") identified by Borrower if: (i) such Proposed
Lender agrees to assume all of the obligations of such Replaced Lender for
consideration equal to the outstanding principal amount of such Replaced
Lender's Loans, together with interest thereon at the rates applicable
thereto hereunder to the date of such transfer, and satisfactory arrangements
are made for payment to such Replaced Lender of all other amounts payable
hereunder to such Replaced Lender on or prior to the date of such transfer
(including any fees accrued hereunder and any amounts which would be payable
under Section 5.05 as if all of such Replaced Lender's Loans were being
prepaid in full on such date), (ii) the conditions to an assignment of such
Replaced Lender's Loans set forth in Section 12.06(b) have been met and (iii)
if such Replaced Lender has requested compensation pursuant to Section 5.01
or 5.06, such Proposed Lender's aggregate requested compensation, if any,
pursuant to said Section 5.01 or 5.06 with respect to such Replaced Lender's
Loans is lower than that of the Replaced Lender. Any Proposed Lender which
has met the conditions of the foregoing sentence shall be a "Lender" for all
purposes hereunder. Without prejudice to the survival of any other agreement
of Borrower hereunder, the agreements of Borrower contained in Sections 5.01,
5.05, 5.06 and 12.03 (without duplication of any payments made to such
Replaced Lender by Borrower or the Proposed Lender) shall survive for the
benefit of any Lender replaced under this Section 5.07 with respect to the
time prior to such replacement.
Section 6. GUARANTEE.
6.01 THE GUARANTEE. The Subsidiary Guarantors hereby jointly and
severally guarantee as a primary obligor and not as a surety to each Lender
and the Administrative Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by acceleration
or otherwise) of the principal of and interest on the Loans made by the
Lenders to, and the Notes held by each Lender of, Borrower and all
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other amounts from time to time owing to the Lenders or the Administrative
Agent by Borrower under this Agreement and under the Notes and by any Obligor
under any of the other Basic Documents, and all obligations of Borrower or
any Subsidiary to any Lender in respect of any Interest Rate Protection
Agreement and all Obligations owing to the Issuing Lender under the Letter of
Credit Documents, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the "GUARANTEED
OBLIGATIONS"). The Subsidiary Guarantors hereby further jointly and
severally agree that if Borrower shall fail to pay in full when due (whether
at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Subsidiary Guarantors will promptly pay the same, without
any demand or notice whatsoever, and that in the case of any extension of
time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
6.02 OBLIGATIONS UNCONDITIONAL. The obligations of the Subsidiary
Guarantors under Section 6.01 are absolute, irrevocable and unconditional,
joint and several, irrespective of the value, genuineness, validity,
regularity or enforceability of the obligations of Borrower under this
Agreement, the Notes or any other agreement or instrument referred to herein
or therein, or any substitution, release or exchange of any other guarantee
of or security for any of the Guaranteed Obligations, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor (except for payment in full), it being the
intent of this Section 6.02 that the obligations of the Subsidiary Guarantors
hereunder shall be absolute, irrevocable and unconditional, joint and
several, under any and all circumstances. Without limiting the generality of
the foregoing, it is agreed that the occurrence of any one or more of the
following shall not alter or impair the liability of the Subsidiary
Guarantors hereunder which shall remain absolute, irrevocable and
unconditional as described above:
(i) at any time or from time to time, without notice to
the Subsidiary Guarantors, the time for any performance of or compliance
with any of the Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of this Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
this Agreement, the Notes or any other Basic Document or any other
agreement or instrument referred to herein or therein shall be amended,
modified or waived in any respect or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
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(iv) any lien or security interest granted to, or in
favor of, the Administrative Agent or any Lender or Lenders as security
for any of the Guaranteed Obligations shall fail to be perfected; or
(v) the release of any other Subsidiary Guarantor.
The Subsidiary Guarantors hereby expressly waive diligence, presentment,
demand of payment, protest and all notices whatsoever, and any requirement
that the Administrative Agent or any Lender exhaust any right, power or
remedy or proceed against Borrower under this Agreement or the Notes or any
other agreement or instrument referred to herein or therein, or against any
other Person under any other guarantee of, or security for, any of the
Guaranteed Obligations. The Subsidiary Guarantors waive any and all notice
of the creation, renewal, extension, waiver, termination or accrual of any of
the Guaranteed Obligations and notice of or proof of reliance by any Lender
upon this guarantee or acceptance of this guarantee, and the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this guarantee, and all
dealings between Borrower and the Lenders shall likewise be conclusively
presumed to have been had or consummated in reliance upon this guarantee.
This guarantee shall be construed as a continuing, absolute, irrevocable and
unconditional guarantee of payment without regard to any right of offset with
respect to the Guaranteed Obligations at any time or from time to time held
by the Lenders, and the obligations and liabilities of the Subsidiary
Guarantors hereunder shall not be conditioned or contingent upon the pursuit
by the Lenders or any other Person at any time of any right or remedy against
Borrower or against any other Person which may be or become liable in respect
of all or any part of the Guaranteed Obligations or against any collateral
security or guarantee therefor or right of offset with respect thereto. This
guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Subsidiary Guarantors and the
successors and assigns thereof, and shall inure to the benefit of the
Lenders, and their respective successors and assigns, notwithstanding that
from time to time during the term of this Agreement there may be no
Guaranteed Obligations outstanding.
6.03 REINSTATEMENT. The obligations of the Subsidiary Guarantors
under this Section 6 shall be automatically reinstated if and to the extent
that for any reason any payment by or on behalf of Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Subsidiary
Guarantors jointly and severally agree that they will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including reasonable fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law, other than any costs or expenses resulting from the gross
negligence or bad faith of such Creditor.
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6.04 SUBROGATION; SUBORDINATION. Each Subsidiary Guarantor hereby
agrees that until the indefeasible payment and satisfaction in full in cash
of all Guaranteed Obligations and the expiration and termination of the
Commitments of the Lenders under this Agreement it shall not exercise any
right or remedy arising by reason of any performance by it of its guarantee
in Section 6.01, whether by subrogation or otherwise, against Borrower or any
other guarantor of any of the Guaranteed Obligations or any security for any
of the Guaranteed Obligations. The payment of any amounts due with respect
to any indebtedness of Borrower or any other Subsidiary Guarantor now or
hereafter owing to any Subsidiary Guarantor by reason of any payment by such
Subsidiary Guarantor under the Guarantee in this Section 6 is hereby
subordinated to the prior indefeasible payment in full in cash of the
Guaranteed Obligations. Each Subsidiary Guarantor agrees that it will not
demand, sue for or otherwise attempt to collect any such indebtedness of
Borrower to such Subsidiary Guarantor until the Obligations shall have been
indefeasibly paid in full in cash. If, notwithstanding the foregoing
sentence, any Subsidiary Guarantor shall prior to the indefeasible payment in
full in cash of the Guaranteed Obligations collect, enforce or receive any
amounts in respect of such indebtedness, such amounts shall be collected,
enforced and received by such Subsidiary Guarantor as trustee for the
Administrative Agent and the Lenders and be paid over to the Administrative
Agent on account of the Guaranteed Obligations without affecting in any
manner the liability of such Subsidiary Guarantor under the other provisions
of the guaranty contained herein.
6.05 REMEDIES. The Subsidiary Guarantors jointly and severally
agree that, as between the Subsidiary Guarantors and the Lenders, the
obligations of Borrower under this Agreement and the Notes may be declared to
be forthwith due and payable as provided in Section 10 (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Section 10) for purposes of Section 6.01 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such
obligations from becoming automatically due and payable) as against Borrower
and that, in the event of such declaration (or such obligations being deemed
to have become automatically due and payable), such obligations (whether or
not due and payable by Borrower) shall forthwith become due and payable by
the Subsidiary Guarantors for purposes of Section 6.01.
6.06 INSTRUMENT FOR THE PAYMENT OF MONEY. Each Subsidiary
Guarantor hereby acknowledges that the guarantee in this Section 6
constitutes an instrument for the payment of money, and consents and agrees
that any Lender or the Administrative Agent, at its sole option, in the event
of a dispute by such Subsidiary Guarantor in the payment of any moneys due
hereunder, shall have the right to bring motion-action under New York CPLR
Section 3213.
6.07 CONTINUING GUARANTEE. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08 GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any action
or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the
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obligations of any Subsidiary Guarantor under Section 6.01 would otherwise be
held or determined to be void, voidable, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount
of its liability under Section 6.01, then, notwithstanding any other
provision to the contrary, the amount of such liability shall, without any
further action by such Subsidiary Guarantor, any Lender, the Administrative
Agent or any other Person, be automatically limited and reduced to the
highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
Section 7. CONDITIONS PRECEDENT.
7.01 INITIAL EXTENSION OF CREDIT. The obligation of any Lender to
make its initial extension of credit hereunder (whether by making a Loan or
issuing a Letter of Credit) is subject to the satisfaction of the conditions
precedent that:
(i) DATE OF BORROWING. Such extension of credit shall be
made on or before March 15, 1997.
(ii) DOCUMENTATION AND EVIDENCE OF CERTAIN MATTERS. The
Arranger shall have received the following documents, each duly executed
where appropriate (with sufficient copies for each Lender), each of which
shall be reasonably satisfactory to the Arranger (and to the extent specified
below, to each Lender) in form and substance:
(1) CORPORATE DOCUMENTS. Certified copies of the charter and
by-laws (or equivalent documents) of each Obligor (including IMSAMET and
its Subsidiaries) and of all corporate authority for each Obligor
(including board of director resolutions and evidence of the incumbency,
including specimen signatures, of officers) with respect to the
execution, delivery and performance of such of the Basic Documents to
which such Obligor is intended to be a party and each other document to
be delivered by such Obligor from time to time in connection herewith
and the extensions of credit hereunder.
(2) OFFICERS' CERTIFICATE. An Officers' Certificate of Borrower,
dated the Closing Date, to the effect set forth in clauses (a) and (b)
of Section 7.02(i).
(3) OPINIONS OF COUNSEL. (i) Opinion of Haynes and Boone, L.L.P.,
special counsel to the Obligors, substantially in the form of EXHIBIT
E-1, (ii) opinion of local counsel to the Obligors in Idaho, Illinois,
Indiana, Kentucky, Oklahoma and Tennessee, substantially in the form of
EXHIBIT E-2 (and each Obligor hereby instructs such counsel to deliver
such opinion to the Lenders, the Arranger and the Administrative Agent)
and (iii) opinion of Cahill Gordon & Reindel, special New York counsel
to the Agents and the Lenders in form and substance satisfactory to the
Agents.
(4) NOTES. The Notes, duly completed and executed for each Lender.
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(5) SECURITY AGREEMENT. The Security Agreement (which shall be in
full force and effect), duly authorized, executed and delivered by the
Obligors and the Administrative Agent, and the certificates identified
under the name of such Obligors in Annex 1 thereto, accompanied by
undated stock powers executed in blank.
(6) REPAYMENT OF EXISTING INDEBTEDNESS. Evidence that the
principal of and interest on, and all other amounts owing in respect of,
the Indebtedness set forth on SCHEDULE 7.01(i) have been (or shall be
simultaneously) paid in full, that any commitments to extend credit
under the agreements or instruments relating to such Indebtedness have
been canceled or terminated and that all guarantees in respect of, and
all Liens securing, any such Indebtedness have been released (or
arrangements for such release satisfactory to the Arranger have been
made); in addition, the Arranger shall have received from any Person
holding any Lien securing any such Indebtedness, such Uniform Commercial
Code termination statements, mortgage releases and other instruments, in
each case in proper form for recording, as the Arranger shall have
requested to release and terminate of record the Liens securing such
Indebtedness (or arrangements for such release and termination
satisfactory to the Majority Lenders have been made). The Arranger
shall have received executed copies of "pay-off" letters with respect to
all such Indebtedness listed on SCHEDULE 7.01(i).
(7) BUSINESS PLAN; PROJECTIONS; PRO FORMA BALANCE SHEET. (1) A
detailed business plan and analysis of the business and prospects of
Borrower and the Subsidiaries for fiscal year 1997 (after giving effect
to the Transactions), (2) an unaudited PRO FORMA consolidated balance
sheet of each of Borrower and the Subsidiaries and Borrower and the
Subsidiaries after giving effect to the Transactions and prepared in
accordance with GAAP, together with a related funds flow statement and
(3) financial projections of Borrower and the Subsidiaries for seven
years following the consummation of the Transactions, which business
plan, analysis, PRO FORMA balance sheet and projections shall be
acceptable to the Arranger.
(8) ENVIRONMENT REPORT AND REVIEW. Phase I environmental
assessments or their substantial equivalent from environmental
evaluation firms reasonably acceptable to the Arranger with respect to
domestic properties on which manufacturing operations are currently
conducted by IMSAMET or any of its Subsidiaries and a review of all
other Environmental Law issues for Property owned by Borrower or any
Subsidiary, in each case the results of which shall be in form and
substance reasonably satisfactory to the Arranger.
(9) INSURANCE. Evidence of insurance complying with the
requirements of Section 9.04, in scope, form and substance satisfactory
to the Arranger and naming the Administrative Agent as an additional
insured on liability policies, and stating that such insurance shall not
be canceled or revised without 30 days prior written notice by the
insurer to the Administrative Agent.
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(iii) IMSAMET ACQUISITION; RELEASE OF LIENS ON IMSAMET
STOCK AND ASSETS. The terms and provisions of the IMSAMET Acquisition
Documents shall be in form and substance satisfactory to the Arranger and no
provision thereof shall have been amended, supplemented, waived or otherwise
modified without the prior written consent of the Arranger and the Majority
Lenders; the IMSAMET Acquisition shall have been consummated in accordance
with the terms of the IMSAMET Acquisition Documents and all requirements of
law for an aggregate purchase price not to exceed $58.0 million (excluding
fees and expenses) simultaneously with the borrowings hereunder. Borrower
shall provide evidence satisfactory to the Arranger that all Liens applicable
to the capital stock of IMSAMET and the Subsidiaries of IMSAMET and the
Property of IMSAMET and the Subsidiaries of IMSAMET have been released and
terminated. IMSAMET and its Subsidiaries shall have no Indebtedness (other
than the Guarantee) outstanding immediately after giving effect to the
IMSAMET Acquisition, other than otherwise permitted by Section 9.08.
(iv) ABSENCE OF CERTAIN PROCEEDINGS. There shall not
exist any threatened, instituted or pending Proceeding (i) challenging the
consummation of the Transactions or any other transaction contemplated hereby
or (ii) seeking to obtain, or having resulted in the entry of, any judgment,
order, injunction or other restraint that (A) would restrain or prohibit, or
impose adverse conditions upon, the ability of the Lenders to make the Loans
or the consummation of the Transactions, (B) could be reasonably expected to
have a Material Adverse Effect or (C) could purport to affect the legality,
validity or enforceability of the Basic Documents or any document relating
thereto, and in the case of (i) and (ii) there is a reasonable possibility
that such action, proceeding or counterclaim would be successful on the
merits.
(v) CERTAIN APPROVALS. All governmental and other
third-party approvals (including landlords' and other consents) necessary in
connection with the Transactions, the financing contemplated hereby and the
continuing operations of Borrower and the Subsidiaries shall have been
obtained and shall be in full force and effect on the Closing Date. All
applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents, or imposes materially
adverse conditions upon the Transactions.
(vi) ABSENCE OF CERTAIN EVENTS. Since December 31, 1995,
there shall not have occurred or become known any change, event or
circumstance, or any development involving a prospective change, event or
circumstance, which in any case in the opinion of the Lenders could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. The Lenders' ongoing diligence investigation shall not have
disclosed information, and the Lenders shall not have otherwise discovered
information not previously disclosed to them, that the Lenders believe has
had or would have, individually or in the aggregate, a Material Adverse
Effect or a material adverse effect on the tax or accounting consequences of
any transactions contemplated hereby.
(vii) FILINGS AND LIEN SEARCHES. The Obligors shall have
authorized, executed and delivered each of the following:
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(1) UCC Financing Statements (Form UCC-1) in appropriate form for
filing under the UCC and any other applicable law, rule or regulation in
each jurisdiction as may be necessary or appropriate to perfect the
Liens created, or purported to be created, by the Security Documents;
(2) lien search reports, each of a recent date listing all
effective financing statements or comparable documents that name any
Obligor or IMSAMET or any Subsidiary of IMSAMET as debtor and that are
filed in those jurisdictions in which any of the Collateral is located
and the jurisdictions in which each such Person's principal place of
business is located, none of which encumber the Collateral covered or
intended to be covered by the Security Agreement other than those
encumbrances which constitute Prior Liens and Permitted Liens; and
(3) evidence of the completion of all recordings and filings of,
or with respect to, the Security Agreement and delivery of such other
security and other documents and the taking of all actions as may be
necessary or, in the opinion of the Arranger, desirable, to perfect the
Liens created, or purported to be created, by the Security Agreement.
(viii) MORTGAGE MATTERS. On or prior to the Closing Date,
each Obligor shall have cause to be delivered to the Administrative Agent, on
behalf of the Lenders.
(1) a Mortgage encumbering each Mortgaged Real Property in favor
of the Administrative Agent, for the benefit of the Lenders, duly
executed and acknowledged by the Borrower or any Subsidiary thereof that
is the owner of or holder of an interest in such Mortgaged Real
Property, and otherwise in form for recording in the recording office of
each political subdivision or foreign jurisdiction where each such
Mortgaged Real Property is situated, together with such certificates,
affidavits, questionnaires or returns as shall be required in connection
with the recording or filing thereof to create a lien under applicable
law, and such UCC-1 Financing Statements and other similar statements as
are contemplated by the counsel opinions described in Section
7.01(ii)(c)(ii) in respect of such Mortgage, all of which shall be in
form and substance satisfactory to the Administrative Agent, and any
other instruments necessary to grant a mortgage lien under the laws of
any applicable jurisdiction, which Mortgage and financing statements and
other instruments shall when recorded be effective to create a first
priority Lien on such Mortgaged Real Property subject to no Liens other
than Prior Liens applicable to such Mortgaged Real Property;
(2) with respect to each Mortgaged Real Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination
agreements or other instruments as necessary or required to consummate
the transactions contemplated hereby or as shall reasonably be deemed
necessary by the Administrative Agent in order for the owner or holder
of the fee or leasehold interest constituting such Mortgaged Real
Property to grant the Lien contemplated by the Mortgage with respect to
such Mortgaged Real Property;
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(3) with respect to each Mortgage, a policy (or commitment to
issue a policy) of title insurance insuring (or committing to insure)
the Lien of such Mortgage as a valid first mortgage Lien on the real
property and fixtures described therein in an amount equal to 100% of
the fair market value thereof which policies (or commitments) shall (a)
be issued by the Title Company, (b) to the extent necessary, include
such reinsurance arrangements (with provisions for direct access) as
shall be reasonably acceptable to the Administrative Agent, (c) contain
a "tie-in" or "cluster" endorsement (if available under applicable law)
(I.E., policies which insure against losses regardless of location or
allocated value of the insured property up to a stated maximum coverage
amount), (d) have been supplemented by such endorsements (or where such
endorsements are not available, opinions of special counsel, architects
or other professionals reasonably acceptable to the Administrative Agent
to the extent that such opinions can be obtained at a cost which is
reasonable with respect to the value of the Real Property subject to
such Mortgage) as shall be reasonably requested by the Administrative
Agent (including, without limitation, endorsements on matters relating
to usury, first loss, last dollar, zoning, contiguity, revolving credit,
doing business, non-imputation, public road access, survey, variable
rate and so-called comprehensive coverage over covenants and
restrictions) and (e) contain no exceptions to title other than
exceptions for the Prior Liens applicable to such Mortgaged Real
Property;
(4) [Intentionally Omitted]
(5) with respect to each Mortgaged Real Property, policies or
certificates of insurance as required by the Mortgage relating thereto,
which policies or certificates shall comply with the insurance
requirements contained in such Mortgage;
(6) with respect to each Real Property and each Mortgaged Real
Property, UCC, judgment and tax lien searches confirming that the
personal property comprising a part of such Real Property or Mortgaged
Real Property is subject to no Liens other than Prior Liens;
(7) with respect to each Mortgaged Real Property, such affidavits,
certificates, information (including financial data) and instruments of
indemnification (including, without limitation, a so-called "gap"
indemnification) as shall be required to induce the Title Company to
issue the policy or policies (or commitment) and endorsements
contemplated in subparagraph (3) above;
(8) evidence acceptable to the Administrative Agent of payment by
the Borrower of all title insurance premiums, search and examination
charges, and related charges, mortgage recording taxes, fees, charges,
costs and expenses required for the recording of the Mortgages and
issuance of the title insurance policies referred to in subparagraph (3)
above;
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(9) with respect to each Real Property or Mortgaged Real Property,
copies of all Leases, subleases, leases in which the Borrower or any
Subsidiary thereof holds the tenant's interest or other agreements relating
to possessory interests, if any. To the extent any of the foregoing affect
any Mortgaged Real Property, such agreement shall be subordinate to the
Lien of the Mortgage to be recorded against such Mortgaged Real Property,
either expressly by its terms or pursuant to a subordination,
non-disturbance and attornment agreement, and shall otherwise be acceptable
to the Administrative Agent;
(10) with respect to each Mortgaged Real Property, the Borrower or
Subsidiary thereof shall have made all notification, registrations and
filings, to the extent required by, and in accordance with, all State and
Local Real Property Disclosure Requirements applicable to such Mortgaged
Real Property, including the use of forms provided by state or local
agencies, where such forms exist, whether to the Borrower or to or with
the state or local agency; and
(11) with respect to each Mortgaged Real Property, an Officer's
Certificate or other evidence satisfactory to the Administrative Agent
that as of the date thereof there (a) there is no outstanding citation,
violation or similar notice indicating that the Mortgaged Real Property
contains conditions which are not in compliance with local codes or
ordinances relating to building or fire safety or structural soundness,
(b) has not occurred any Taking or Destruction of any Mortgaged Real
Property and (c) are no disputes regarding boundary lines, location,
encroachment or possession of such Mortgaged Real Property and to the best
knowledge of the Borrower or any Subsidiary thereof, that is the owner of
or holder of an interest in such Mortgaged Real Property, no state of
facts existing which could give rise to any such claim.
(ix) OTHER MATTERS. (1) The Lenders shall be reasonably satisfied
with the status of all labor, tax, employee benefit, environmental and health
and safety matters involving the Obligors and their Subsidiaries and their plans
with respect thereto.
(2) The corporate and capital structure, and documents and
instruments related thereto, of the Obligors and their Subsidiaries, after
giving effect to the Transactions, shall be satisfactory to the Lenders in
all respects. All material contractual obligations of the Obligors and
their Subsidiaries (both before and after giving effect to the
Transactions) shall be reasonably satisfactory to the Arranger.
(3) All other documentation, including any employment agreement,
management compensation arrangement (including any agreements entered into
with any of the senior management of any Obligor) or other financing
arrangement of the Obligors shall be satisfactory in form and substance
to the Lenders.
(4) The Lenders shall have received such other legal opinions,
corporate documents and other instruments and/or certificates as they may
reasonably request.
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The obligation of any Lender to make its initial extension of credit hereunder
is also subject to the payment by Borrower of such fees and expenses as
Borrower shall have agreed to pay to any Creditor in connection herewith,
including counsel fees and expenses.
7.02 INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT. Except as set
forth in Section 2.03, the obligation of the Lenders to make any Loan or
otherwise extend any credit to Borrower upon the occasion of each borrowing
or other extension of credit hereunder (including the initial borrowing) is
subject to the further conditions precedent that:
(i) Both immediately prior to the making of such Loan or other
extension of credit and also after giving PRO FORMA effect thereto and to the
intended use thereof:
(a) no Default or Event of Default shall have occurred and
be continuing; and
(b) the representations and warranties made by the Obligors
in Section 8, and by each Obligor in each of the other Basic Documents
to which it is a party, shall be true and complete on and as of the date
of the making of such Loan or other extension of credit with the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
(ii) No material litigation, investigation or proceeding before or
by any arbitrator or Governmental Authority shall be continuing or threatened
against any Obligor or any of the officers or directors of any thereof in
connection with any Basic Document or any of the transactions contemplated
hereby or thereby.
(iii) The Loans and the use of proceeds thereof shall not contravene,
violate or conflict with, nor involve any Lender in a violation of, any law,
rule, injunction, or regulation or determination of any court of law or other
Governmental Authority.
Each notice of borrowing or request for the issuance of a Letter of
Credit by Borrower hereunder shall constitute a certification by Borrower to
the effect set forth in clause (i) above (both as of the date of such notice
or request and, unless Borrower otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Each notice submitted by Borrower hereunder for an extension of
credit hereunder shall constitute a representation and warranty by Borrower,
as of the date of such notice and as of the relevant borrowing date or date
of issuance of a Letter of Credit, as applicable, that the applicable
conditions in Sections 7.01 and 7.02 are satisfied.
Section 8. REPRESENTATIONS AND WARRANTIES. Each Obligor
represents and warrants to the Creditors that (at and as of the Closing Date
in each case immediately before and immediately after giving effect to the
Transactions):
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8.01 CORPORATE EXISTENCE. Each of Borrower and each Subsidiary:
(a) is a corporation, partnership or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power and authority,
and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being
conducted; and (c) is qualified to transact business and is in good standing
in all jurisdictions in which the nature of the business conducted by it
makes such qualification necessary and where failure to be so qualified and
in good standing would reasonably be expected to (either individually or in
the aggregate) have a Material Adverse Effect.
8.02 FINANCIAL CONDITION; ETC. (a) Borrower has heretofore
delivered to the Lenders (A) the audited consolidated balance sheets of
Borrower and the Subsidiaries as of December 31, 1991, December 31, 1992,
December 31, 1993, December 31, 1994 and December 31, 1995, and the related
statements of earnings, changes in stockholders' equity and cash flows for
the fiscal years ended on those dates, together with reports thereon by
Ernst & Young LLP, certified public accountants, and (B) the unaudited
consolidated balance sheets of Borrower and the Subsidiaries as of March 31,
1996, June 30, 1996 and September 30, 1996, and the related statements of
earnings and cash flows for the fiscal periods ended on March 31, 1996, June
30, 1996 and September 30, 1996, respectively, together with review reports
thereon by Ernst & Young, LLP, certified public accountants. All of said
financial statements, including in each case the related schedules and notes,
are true, complete (in the case of year-end financial statements) and correct
in all material respects, have been prepared in accordance with generally
accepted accounting principles consistently applied (except that no notes
have been included in unaudited financial statements) and present fairly the
financial position of Borrower and the Subsidiaries as of the respective
dates of said balance sheets and the results of their operations for the
respective periods covered thereby, subject (in the case of interim
statements) to period-end audit adjustments.
(b) Except as set forth in SCHEDULE 8.02 or in the financial
statements referred to in Section 8.02(a), neither Borrower nor any
Subsidiary has any material contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or anticipated losses from any
unfavorable commitments.
(c) Except as set forth in the financial statements referred to in
Section 8.02(a), since December 31, 1995 there has been no Material Adverse
Effect, or any event, change or circumstance which could reasonably be
expected to cause or evidence, either individually or together with any other
events, changes or circumstances, a Material Adverse Effect.
(d) All PRO FORMA financial information and projections provided
at any time by or on behalf of Borrower to the Lenders are accurate and
complete in all material respects as of the date of such information and all
PRO FORMA adjustments given effect therein are based upon assumptions which
Borrower believes to be fair and reasonable.
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(e) Borrower has heretofore delivered to the Lenders financial
statements of IMSAMET consisting of a consolidated income statement and
(except as to 1993) a consolidated cash flow statement for each of the three
years ended December 31, 1993, 1994 and 1995 and for the nine months ended
September 30, 1996 and consolidated balance sheets as of December 31, 1993,
1994 and 1995 and as of September 30, 1996. To the best of Borrower's
knowledge, such financial statements present fairly, in all material
respects, the consolidated financial position of IMSAMET at December 31,
1993, 1994 and 1995 and September 30, 1996, and its consolidated results of
operations and (except as to 1993) cash flows for each of the three years in
the period ended December 31, 1995 and for the nine months ended September
30, 1996 in a manner that is consistent with IMSAMET's historical financial
accounting and reporting practices and that, while not inconsistent with
GAAP, is not in conformity with GAAP because, among other things: (i)
certain disclosures required by GAAP are not included; (ii) deferred Income
Taxes are not included in such financial statements; (iii) EnviroSource's
corporate staff supply centralized banking and cash management services to
IMSAMET and its Subsidiaries, and provide tax, general accounting, auditing,
human services to IMSAMET and its Subsidiaries, none of which has been
charged to IMSAMET and its Subsidiaries or included in such financial
statements; and (iv) EnviroSource has not charged IMSAMET and its
Subsidiaries any general corporate allocation, and no such allocation is
included in such financial statements. To the best of Borrower's knowledge,
such Financial Statements reflect the consistent application of accounting
principles throughout the periods involved. At September 30, 1996, IMSAMET,
on a consolidated basis, has no indebtedness, liabilities or obligations
(other than deferred income taxes) required by GAAP to be included on a
balance sheet which are not included in its consolidated balance sheet at
September 30, 1996 included in the financial statements of IMSAMET.
8.03 LITIGATION. Except as disclosed in SCHEDULE 8.03, there are
no Proceedings or investigations now pending or (to the knowledge of the
Obligors) threatened against or directly affecting Borrower or any Subsidiary
that, if adversely determined could (either individually or in the aggregate)
be reasonably expected to have a Material Adverse Effect.
8.04 NO BREACH; NO DEFAULT. (a) None of the execution, delivery
and performance by each Obligor of any Basic Document or any Document to
which it is a party and the consummation of the transactions herein and
therein contemplated will (i) conflict with or result in a breach of, or
require any consent (which has not been obtained and is in full force and
effect) under, the charter or by-laws of any Obligor, or any applicable law
or regulation, or any order, writ, injunction or decree of any Governmental
Authority binding on any Obligor, or any term or provision of any agreement
or instrument to which any Obligor or any of its Subsidiaries is a party or
by which any of them or any of their Property is bound or to which any of
them is subject, or (ii) constitute (with due notice or lapse of time or
both) a default under any such agreement or instrument, or (iii) result in
the creation or imposition of any Lien (except for the Liens created pursuant
to the Security Documents) upon any Property of any Obligor or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument,
except with respect to each of the foregoing which would not (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect.
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(b) Neither Borrower nor any Subsidiary is in default under or
with respect to any contractual obligation or any order, award or decree of
any Governmental Authority or arbitrator binding upon it or any of its
properties in any respect which would have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
8.05 ACTION. Each Obligor has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations
under each Basic Document and each Document to which it is a party and to
consummate the transactions herein and therein contemplated; the execution,
delivery and performance by each Obligor of each Basic Document and each
Document to which it is a party and the consummation of the transactions
herein and therein contemplated have been duly authorized by all necessary
corporate action on its part; and this Agreement has been duly and validly
executed and delivered by each Obligor and constitutes, and each of the
Notes, the other Basic Documents and the Documents to which it is a party
when executed and delivered by such Obligor (in the case of the Notes, for
value) will constitute, its legal, valid and binding obligation, enforceable
against each Obligor in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws of general
applicability from time to time in effect affecting the enforcement of
creditors' rights and remedies and (b) the application of general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
8.06 APPROVALS. Except as set forth on SCHEDULE 8.06, no
authorizations, approvals or consents of, and no filings or registrations
with, any Governmental Authority or any securities exchange are necessary for
the execution, delivery or performance by any Obligor of the Basic Documents
or Documents to which it is a party or for the legality, validity or
enforceability hereof or thereof or for the consummation of the transactions
herein and therein contemplated, except for filings and recordings in respect
of the Liens created pursuant to the Security Documents.
8.07 ERISA. Each member of the ERISA Group (x) has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and (y) is in compliance in all material respects with
the presently applicable provisions of ERISA and the Code with respect to
each Plan other than any failure to so comply that could not reasonably be
expected to have a Material Adverse Effect. No member of the ERISA Group has
(i) sought a waiver of the minimum funding standard under Section 412 of the
Code in respect of any Plan, (ii) failed to make any contribution or payment
to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement,
or made any amendment to any Plan or Benefit Arrangement, which has resulted
or could reasonably be expected to result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code or (iii) incurred
or reasonably expects to incur any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA. Neither
Borrower nor any Subsidiary has incurred any material obligation in connection
with the termination of or withdrawal from any Foreign Pension Plan.
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8.08 TAXES. Borrower and each Subsidiary has filed or caused to
be filed all tax returns which to the knowledge of Borrower are required to
be filed and has paid all Taxes shown to be due and payable on said returns
or on any assessments made against it or any of its Property and all other
Taxes, fees or other charges imposed on it or any of its Property (including
the Mortgaged Real Property) by any Governmental Authority (other than those
which, in the aggregate, are not substantial in amount or those the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of Borrower or the Subsidiaries, as the case may
be); and no tax lien has been filed and, to the knowledge of Borrower, no
claim is being asserted with respect to any such Tax, fee or other charge.
8.09 INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT;
OTHER RESTRICTIONS. Neither Borrower nor any Subsidiary is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended. Neither Borrower
nor any Subsidiary is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended. No Obligor is
subject to regulation under any federal or state statute or regulation which
limits its ability to incur Indebtedness.
8.10 NO BURDENSOME RESTRICTIONS. No contractual obligation of
Borrower or any Subsidiary and no requirement of law materially adversely
affects, or insofar as Borrower could reasonably foresee may so affect, the
business, operations, property or financial or other condition of Borrower
and the Subsidiaries taken as a whole.
8.11 CAPITALIZATION. As of the close of business on the Business
Day immediately preceding the Closing Date, the authorized stock of Borrower
consists of: 20,000,000 shares of Common Stock, $0.10 par value, of which
11,909,928 shares are issued and outstanding; and 8,000,000 shares of Preferred
Stock, $0.10 par value, of which no shares are issued and outstanding.
8.12 ENVIRONMENTAL MATTERS. Except as disclosed in SCHEDULE 8.12
and except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect: (i) Borrower and the
Subsidiaries are in compliance with and in the last five years have been in
compliance with, and are not subject to liability under, any Environmental
Laws applicable to them and their business and operations and facilities and
properties owned, leased, operated or used by any of them; (ii) neither
Borrower nor any Subsidiary has received notice that it has been identified
as a potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), or
any comparable foreign or state law, nor has Borrower or any Subsidiary
received any written notification that any Hazardous Materials that it or any
of their respective predecessors in interest has used, generated, stored,
treated, handled, transported or disposed of, or arranged for disposal or
treatment of, have been found at any site at which any Person is conducting
or plans to conduct any action pursuant to any
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Environmental Law; (iii) no properties now or formerly owned, leased or
operated by Borrower or any Subsidiary or, to the knowledge of Borrower or
any Subsidiary, any of their respective predecessors in interest, are (x)
listed or proposed for listing on the National Priorities List under CERCLA
or (y) listed on the Comprehensive Environmental Response, Compensation and
Liability Information System List promulgated pursuant to CERCLA or (z)
included on any comparable lists maintained by any Governmental Authority;
(iv) there are no past or present events, conditions, activities, practices
or actions, or any agreements, judgments, decrees or orders by which Borrower
or any Subsidiary is bound, which would reasonably be expected to prevent
Borrower and the Subsidiaries' compliance with any Environmental Law, or
which would reasonably be expected to give rise to any liability of Borrower
or any Subsidiary under any Environmental Law, including, without limitation,
liability under CERCLA or similar state or foreign laws; (v) no Lien has been
asserted or recorded, or to the knowledge of Borrower and each Subsidiary
threatened, under any Environmental Law with respect to any asset, facility,
inventory or property currently owned, leased or operated by Borrower or any
Subsidiary; and (vi) there are no underground storage tanks or related piping
at any property owned, operated or leased by Borrower or any Subsidiary, and
any former underground tanks or related piping on any such property which has
been removed or closed has been removed or closed in accordance with any
applicable Environmental Law.
8.13 USE OF PROCEEDS. Neither Borrower nor any Subsidiary is
engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying Margin Stock and no part of the proceeds of
any extension of credit hereunder will be used to purchase or carry any
Margin Stock. On the Closing Date, Borrower will use the proceeds of all of
the Term Loans made on such date solely (i) to effect the IMSAMET Acquisition
and to refinance the Indebtedness set forth on SCHEDULE 7.01(i) and (ii) to
pay fees and expenses directly related to the IMSAMET Acquisition and such
refinancing. Borrower will use the proceeds of Revolving Credit Loans for
general corporate purposes.
8.14 SUBSIDIARIES. On the date hereof (after giving effect to the
Transactions), Borrower has no Subsidiaries or interest in partnerships,
joint ventures or business trusts other than the entities set forth in
SCHEDULE 8.14. Borrower owns, as of the Closing Date, the percentage of the
issued and outstanding capital stock or other evidences of the ownership of
each Subsidiary, partnership or joint venture listed on SCHEDULE 8.14 as set
forth on such Schedule. No such Subsidiary, partnership or joint venture has
issued any securities convertible into shares of its capital stock (or other
evidence of ownership) or any Equity Rights to acquire such shares or
securities convertible into such shares (or other evidence of ownership), and
the outstanding stock and securities (or other evidence of ownership) of such
Subsidiaries, partnerships or joint ventures are owned by Borrower and the
Subsidiaries free and clear of all Liens and Equity Rights of others of any
kind whatsoever, except (i) as set forth on SCHEDULE 8.14, (ii) for Liens
pursuant to the Security Documents and (iii) for the right to acquire
additional interests pursuant to the Barmet Option and the Alchem Option.
8.15 PROPERTIES. Each of the Obligors has good and marketable
title to and beneficial ownership of all properties and assets owned by it,
including all property reflected
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in the most recent financial statements delivered pursuant to this Agreement
(except as sold or otherwise disposed of since the date of such financial
statements in the ordinary course of business and in accordance with this
Agreement). Title to each such property or asset that is not Collateral is
held by the Obligors and each of their respective Subsidiaries free and clear
of all Liens except for Permitted Liens. Title to each such property or
asset that constitutes Collateral is held by the Obligors free and clear of
all Liens other than Permitted Liens and Prior Liens.
8.16 SECURITY INTEREST. The Security Documents, once executed,
delivered, filed and/or recorded will create, in favor of the Administrative
Agent for the benefit of the Lenders, as security for the obligations
purported to be secured thereby, a valid and enforceable perfected first
priority security interest in and Lien upon all of the Collateral, superior
to and prior to the rights of all third persons and subject to no Liens
except the Prior Liens applicable to such Collateral.
8.17 COMPLIANCE WITH LAWS. Each Obligor is in compliance in all
material respects with all applicable statutes, laws, ordinances, rules,
orders and regulations of any Governmental Authority in all jurisdictions in
which it is presently doing business, and each Obligor will comply and cause
each of its Subsidiaries to comply in all material respects with all such
laws and regulations which may be imposed in the future in jurisdictions in
which it or such Subsidiary may then be doing business, in each case other
than those the non-compliance with which would not (individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect. At the
time of consummation thereof, the IMSAMET Acquisition shall have been
consummated substantially in accordance with the terms of the IMSAMET
Acquisition Documents and all applicable requirements of law and all consents
and approvals of all Governmental Authorities required to consummate the
IMSAMET Acquisition have been obtained, given, filed or taken or waived and
are or will be in full force and effect (or effective judicial relief with
respect thereto has been obtained). Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the Transactions, or the performance by Borrower and the
Subsidiaries of their obligations under the Basic Documents, the Documents
and all applicable laws.
8.18 TRUE AND COMPLETE DISCLOSURE. The information, reports,
financial statements, exhibits and schedules furnished in writing by any of
the Obligors to any Creditor in connection with the negotiation, preparation
or delivery of this Agreement and the other Basic Documents or included
herein or therein or delivered pursuant hereto or thereto, whether prior to
or after the date of this Agreement, when taken as a whole, do not, as of the
date such information was furnished, contain any untrue statement of material
fact or omit to state a material fact necessary in order to make the
statements herein or therein, in light of the circumstances under which they
were made, not materially misleading.
8.19 SOLVENCY. As of the Closing Date and each other date of an
extension of credit hereunder: (i) the fair salable value of the Properties
of the Obligors, on a consolidated basis, exceeds and will, immediately
following the making of each Loan or other extension of credit hereunder,
exceed the amount of all debt and liabilities (including all contingent,
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subordinated, unmatured and unliquidated liabilities) of such Obligor; (ii) no
Obligor has, or will have, immediately following the making of each Loan or
other extension of credit hereunder, unreasonably small capital to carry out
its business as conducted or as proposed to be conducted; and (iii) the Obligors
do not intend to, or believe that they will, incur debts beyond their ability
to pay such debts as they mature.
8.20 EMPLOYEE AND LABOR MATTERS. Except as disclosed on SCHEDULE
8.20, there is (i) no unfair labor practice complaint pending against
Borrower or any Subsidiary or, to the knowledge of the Obligors, threatened
against any of them, before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against Borrower or any Subsidiary or, to
the knowledge of the Obligors, threatened against any of them, (ii) no
strike, labor dispute, slowdown or stoppage pending against Borrower or any
Subsidiary or, to the knowledge of the Obligors, threatened against Borrower
or any Subsidiary and (iii) to the knowledge of the Obligors, no union
representation question existing with respect to the employees of Borrower or
any Subsidiary and, to the knowledge of the Obligors, no union organizing
activities are taking place, except (with respect to any matter specified in
clause (i), (ii) or (iii) above, either individually or in the aggregate)
such as would not reasonably be expected to have a Material Adverse Effect.
8.21 INTELLECTUAL PROPERTY. Borrower and each Subsidiary owns, or
is licensed to use, all patents, trademarks, tradenames, servicemarks,
copyrights, technology, trade secrets, know-how and processes necessary for
the conduct of its business as currently conducted (the "INTELLECTUAL
PROPERTY") except for those the failure to own or license which could not,
individually or in the aggregate, have a Material Adverse Effect. No claim
has been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does Borrower know of any valid basis for any
such claim. To the knowledge of the Obligors, the use of such Intellectual
Property by Borrower and the Subsidiaries does not infringe the rights of any
Person, except for such claims and infringements that, in the aggregate, do
not have a Material Adverse Effect.
8.22 REPRESENTATIONS AND WARRANTIES IN DOCUMENTS. All
representations and warranties of the Obligors set forth in the Documents
were true and correct in all material respects as of the time such
representations and warranties were made and shall be true and correct in all
material respects as of the Closing Date as if such representations and
warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date.
To the best knowledge of the Obligors, the representations and warranties of
each party to each Document other than the Obligors contained therein are
true and correct in all material respects on the date hereof and on the
Closing Date as if made on and as of the date hereof and the Closing Date.
Section 9. COVENANTS. Each Obligor covenants and agrees with the
Creditors that (and each Obligor covenants and agrees that it shall not
permit any Subsidiary to take
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any action prohibited by any Subsidiary hereunder and shall cause each
Subsidiary to take all action required by Subsidiaries hereunder), so long as
any Commitment, Loan or Letter of Credit Liability is outstanding and until
payment in full of all amounts payable by Borrower hereunder:
9.01 FINANCIAL STATEMENTS, ETC. Borrower (for itself and on
behalf of the Subsidiary Guarantors) shall deliver to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each of the first three quarterly fiscal periods of each fiscal
year, consolidated statements of income and cash flow of Borrower and its
Consolidated Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated statement of income for the
corresponding period in the preceding fiscal year, accompanied by a
certificate of a senior financial officer of Borrower, which certificate
shall state that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of Borrower and
its Consolidated Subsidiaries in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal
year-end audit adjustments);
(b) as soon as available and in any event within 120 days after the
end of each fiscal year, consolidated statements of income, stockholders'
equity and cash flow of Borrower and its Consolidated Subsidiaries for
such year and the related consolidated balance sheet of Borrower and its
Consolidated Subsidiaries as at the end of such year, setting forth in
each case in comparative form the corresponding consolidated figures as
of the end of and for the preceding fiscal year, and accompanied by an
opinion, without material qualification, thereon of independent certified
public accountants of recognized national standing, which opinion shall
state that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of Borrower
and its Consolidated Subsidiaries as at the end of, and for, such fiscal
year in accordance with GAAP, and a certificate of such accountants stating
that, in making the examination necessary for their opinion, they
obtained no knowledge of any Default;
(c) promptly upon delivery thereof to the shareholders of Borrower
or any Subsidiary generally, copies of all financial statements and reports
and proxy statements so delivered which Borrower sends to all holders of
securities of the same class and within five days after the same are
filed, copies of all financial statements and reports which Borrower may
make to or file with the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(d) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of
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ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint
a trustee to administer any Plan, a copy of such notice; (iv) applies for
a waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any
Plan under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii)
fails to make any payment or contribution to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement or makes any amendment to
any Plan or Benefit Arrangement which has resulted or could reasonably be
expected to result in the imposition of a Lien or the posting of a bond
or other security under ERISA or the Code, an Officers' Certificate
setting forth details as to such occurrence and action, if any, which
Borrower or the applicable member of the ERISA Group is required or
proposes to take;
(e) beginning the 45th day after the close of Borrower's fiscal
quarter ended June 30, 1997, together with the financial statements
delivered pursuant to clause (a) or (b) of this Section 9.01, an Interest
Rate Certificate;
(f) promptly after Borrower or any Subsidiary knows or has reason to
believe that any Default has occurred, a notice of such Default describing
the same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that Borrower has
taken and proposes to take with respect thereto;
(g) written notice of any Environmental Claim materially affecting
Borrower and the Subsidiaries taken as a whole, any Mortgaged Real Property
or the operations of Borrower and the Subsidiaries taken as a whole, and
any notice from any Person of (i) the occurrence of any release, spill or
discharge of any Hazardous Material that is reportable under any
Environmental Law, (ii) the commencement of any clean-up pursuant to or
in accordance with any Environmental Law of any Hazardous Material at,
on, under or within the Mortgaged Real Property or any part thereof or
(iii) any other condition, circumstance, occurrence or event, any of which
could reasonably be expected to result in a material liability of Borrower
or any Subsidiary under any Environmental Law;
(h) promptly upon receipt thereof, copies of all reports submitted to
Borrower by independent certified public accountants in connection with
each annual, interim or special audit of the books of Borrower made by
such accountants,
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including, without limitation, any management letter commenting on
Borrower's internal controls submitted by such accountants to management
in connection with their annual audit;
(i) an annual budget in reasonable detail within 60 days after the
end of each fiscal year of the Borrower;
(j) written notice of (1) the incurrence of any material Lien (other
than Liens permitted pursuant to Section 9.07) on, or claim asserted
against any of the collateral security in the Security Documents or
(2) the occurrence of any other event which could reasonably be expected
to have a material adverse effect on the aggregate value of the collateral
under any Security Document;
(k) written notice of a material adverse change in the business,
operations, property or financial or other condition of Borrower and
the Subsidiaries taken as a whole; and
(l) as promptly as is reasonably practicable, such financial and
other information as any Creditor may from time to time reasonably request.
Borrower will furnish to the Administrative Agent, at the time it furnishes
each set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a senior financial officer of Borrower (i) to the effect that
no Default has occurred and is continuing (or, if any Default has occurred
and is continuing, describing the same in reasonable detail and describing
the action that Borrower has taken and proposes to take with respect thereto)
and (ii) setting forth in reasonable detail the computations necessary to
determine whether Borrower is in compliance with Sections 9.07, 9.08, 9.09,
9.10 and 9.11 as of the end of the respective quarterly fiscal period or
fiscal year. The Administrative Agent shall forward such certificate and
information to the Lenders.
9.02 LITIGATION, ETC. Borrower shall promptly give to the
Administrative Agent (which shall promptly provide a copy thereof to each
Lender) notice of all legal or arbitral proceedings, and of all proceedings
by or before any governmental or regulatory authority or agency, and any
material development in respect of such legal or other proceedings, affecting
Borrower or any Subsidiary, except proceedings which could not reasonably be
expected to have (individually or in the aggregate) a Material Adverse Effect.
9.03 EXISTENCE; COMPLIANCE WITH LAW; PAYMENT OF TAXES; INSPECTION
RIGHTS; PERFORMANCE OF OBLIGATIONS; ETC. Borrower and each Subsidiary shall,
(i) preserve and maintain its legal existence and all of its material rights,
privileges and franchises (PROVIDED, HOWEVER, that nothing in this Section
9.03 shall prohibit any transaction expressly permitted under Section 9.06);
(ii) comply with the requirements of all applicable laws (including ERISA and
the rules and regulations thereunder), rules, regulations and orders of
Governmental or Authorities if failure to comply with such requirements would
(individually or in the aggregate) have a Material Adverse Effect; (iii)
timely file true, accurate and complete tax returns
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required by all Governmental Authorities and pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its income
or profits or on any of its Property prior to the date on which penalties
attach thereto (except for any such tax, assessment, charge or levy the
payment of which is being contested in good faith and by proper proceedings
and against which adequate reserves are being maintained) if such failure to
pay and discharge would (individually or in the aggregate) have a Material
Adverse Effect; (iv) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted, except to the extent that the failure to do so with respect to any
such Property would not individually or in the aggregate be reasonably likely
to have a Material Adverse Effect; (v) permit representatives of any
Creditor, upon reasonable prior notice during normal business hours, to
examine, copy and make extracts from its books and records, to inspect its
Properties, and to discuss its business and affairs with its officers, all to
the extent reasonably requested by such Creditor; (vi) perform in all
material respects all of its obligations under the terms of each mortgage,
indenture, security agreement, other debt instrument and material contract by
which it is bound or to which it is a party, except where such failure to so
perform, singly or in the aggregate with all other such failures, would not
have a Material Adverse Effect; and (vii) keep proper books of record and
accounts, in which full and correct entries shall be made of all financial
transactions and the Property and business of each Obligor and its
Subsidiaries in accordance with generally accepted accounting principles in
effect from time to time or as otherwise required by applicable rules and
regulations of any Governmental Authority having jurisdiction over such
Obligor or its Subsidiaries, as relevant. Borrower will confer with the
Lenders in enforcing or waiving material rights of Borrower or any Subsidiary
under any Document.
9.04 INSURANCE. Borrower and each Subsidiary shall keep insured
by financially sound and reputable insurers all Property of a character
usually insured by corporations engaged in the same or similar business
similarly situated against loss or damage of the kinds and in the amounts
customarily insured against by such corporations and carry such other
insurance as is usually carried by such corporations, including, in any
event, business interruption insurance. Borrower shall deliver to the
Administrative Agent a certificate of insurance for each liability policy of
insurance which shall contain an endorsement showing the Administrative Agent
as an additional insured. Such endorsement shall provide for at least 30
days' prior notice to the Administrative Agent of any proposed termination or
cancellation of such policy, whether on account of default or otherwise.
9.05 ISSUANCE OR DISPOSALS OF CAPITAL STOCK OF SUBSIDIARIES. No
Subsidiary shall issue, sell, assign, transfer or otherwise dispose of any
shares (or other ownership interests) of any class of its capital stock or
equity ownership interests or of any Equity Rights to purchase its capital
stock or equity ownership interests or of other securities exchangeable for
or convertible into its capital stock or equity ownership interests, except
(a) to Borrower or a Wholly Owned Subsidiary, (b) directors' qualifying
shares as required by law and (c) pursuant to the Barmet Option or the Alchem
Option. Except for any sale pursuant to the Barmet Option or the Alchem
Option, neither Borrower nor any Subsidiary shall effect the Disposition
<PAGE>
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of any capital stock of any Subsidiary unless all capital stock owned by
Borrower and the Subsidiaries is sold pursuant thereto and such sale is
otherwise permitted herein.
9.06 FUNDAMENTAL CHANGES; ACQUISITIONS; DISPOSITIONS. No Obligor
or Subsidiary shall, directly or indirectly, (1) enter into any transaction
of merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), (2) acquire any business
or Property from, or capital stock of, or be a party to any acquisition of,
any Person, or effect any Acquisition, or (3) effect any Disposition or
convey, sell, lease, assign, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or a substantial part of its
business or Property, whether now owned or hereafter acquired, including
receivables and leasehold interests. Notwithstanding the foregoing provisions
of this Section 9.06, (x) the consummation of the IMSAMET Acquisition in
accordance with the IMSAMET Acquisition Documents shall not be prohibited in
any respect and (y) each of the following shall be permitted:
(a) purchases of inventory and other Property to be sold or used
in the ordinary course of business;
(b) Acquisitions permitted by Section 9.09(k), (u), (v) or (y) and
other Investments permitted by Section 9.09;
(c) any Subsidiary (other than IMSAMET and its Subsidiaries or any
of their successors) may be merged or consolidated or dissolved or
liquidated with or into: (i) Borrower if Borrower shall be the
continuing or surviving corporation or (ii) any Wholly Owned Subsidiary
which is an Obligor; PROVIDED, HOWEVER, that a Wholly Owned Subsidiary
which is an Obligor shall be the continuing or surviving corporation;
(d) any Subsidiary may sell, lease, transfer or otherwise dispose
of any or all of its Property (upon voluntary liquidation or otherwise)
to Borrower or to any Wholly Owned Subsidiary which is an Obligor (other
than IMSAMET and its Subsidiaries or any of their successors);
(e) any Wholly Owned Subsidiary that is a Foreign Subsidiary may
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to another Wholly Owned
Subsidiary that is a Foreign Subsidiary;
(f) Dispositions of used, worn out, obsolete or surplus equipment
or other Property by Borrower or any Subsidiary, all in the ordinary
course of business; PROVIDED, HOWEVER, that the proceeds thereof are
reinvested in the business of Borrower or any Subsidiary within one year
of such Disposition;
(g) any Foreign Subsidiary may be merged or consolidated with or
into any one or more Wholly Owned Subsidiaries that are Foreign
Subsidiaries (provided that a Wholly Owned Subsidiary that is a Foreign
Subsidiary shall be the continuing or surviving corporation);
<PAGE>
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(h) Borrower or any Subsidiary may sell or discount, in each case
without recourse, accounts receivable arising in the ordinary course of
business, but only in connection with the compromise or collection
thereof;
(i) the sale by any Foreign Subsidiary of its accounts receivable;
PROVIDED, HOWEVER, that the terms of each such sale are satisfactory in
form and substance to the Administrative Agent;
(j) Dispositions for fair market value not to exceed $10.0 million
in the aggregate since the Closing Date; PROVIDED, HOWEVER, that the Net
Available Proceeds therefrom are reinvested as specified in Section
2.10(a)(iii) or applied to the prepayment of the Term Loans as specified
in Section 2.10(a)(iii);
(k) the sale of all or substantially all of the capital stock
and/or equity interests in or assets of (1) IMCO Recycling of
California, Inc., a Subsidiary and (2) Marport Smelting L.L.C., a joint
venture, owned by Borrower or any Subsidiary; PROVIDED, HOWEVER, that
the Net Available Proceeds therefrom are reinvested as specified in
Section 2.10(a)(iii) or applied to the prepayment of the Term Loans as
specified in Section 2.10(a)(iii); and
(l) the sale of the capital stock of or other ownership interests
in (x) the Barmet Option Entity pursuant to the terms of the Barmet
Option (but not to exceed a 49% interest therein) and (y) IMCO Recycling
of Michigan L.L.C., a Subsidiary, pursuant to the Alchem Option (but not
to exceed a 40% interest therein); PROVIDED, HOWEVER, that in each case
the Net Available Proceeds therefrom are applied to the prepayment of
the Term Loans as specified in Section 2.10(a)(iii).
To the extent the Majority Lenders waive the provisions of this Section 9.06
with respect to the sale or other disposition of any Collateral, or any
Collateral is sold or otherwise disposed of as permitted by this Section 9.06
(and such Collateral is released (or permitted to be released) from the Liens
created by the respective Security Document), such Collateral in each case
shall be sold or otherwise disposed of free and clear of the Liens created by
the Security Documents and the Administrative Agent shall take such actions
as are appropriate in connection therewith.
9.07 LIENS AND RELATED MATTERS. No Obligor or Subsidiary shall,
directly or indirectly, create, incur, assume or suffer to exist any Lien
upon or with respect to any of their respective Property (including
Collateral), whether now owned or hereafter acquired, or sell any such
property or assets subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets or assign any right to
receive income, or file or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute, except the following, which are herein collectively referred
to as "PERMITTED LIENS":
(a) Liens created pursuant to or permitted by the Security Documents;
<PAGE>
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(b) Liens in existence on the date hereof and identified in SCHEDULE
9.07 (excluding, however, following the making of the initial Loans
hereunder, Liens securing Indebtedness to be repaid with the proceeds of such
Loans, as indicated on SCHEDULE 7.01(i));
(c) Liens imposed by any Governmental Authority for taxes, assessments
or charges not yet due or which are being contested in good faith and by
appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of Borrower or the affected Subsidiary, as the case
may be, in accordance with GAAP;
(d) Liens in respect of Property of Borrower or any Subsidiary imposed
by law which were incurred in the ordinary course of business, such as
carriers', warehousemen's, landlords' and mechanics' Liens and other similar
Liens arising in the ordinary course of business, in each case for sums the
payment of which is not required by Section 9.03;
(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation or the deposits securing the
liability to insurance carriers;
(f) pledges or deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions or minor defects or
irregularities in title incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Real Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which do not
in any case materially detract from the value of the Real Property subject
thereto or interfere with the ordinary conduct of the business of Borrower or
any Subsidiary;
(h) Liens upon tangible personal Property acquired after the date
hereof by Borrower or any Subsidiary, each of which Liens either (A) existed
on such Property before the time of its acquisition and was not created in
anticipation thereof, or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund, the
cost of such Property or improvements thereon; PROVIDED, HOWEVER, that (x) no
such Lien shall extend to or cover any Property of Borrower or such
Subsidiary other than the Property so acquired and improvements thereon and
(y) the principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the fair market value of such Property at the time it was
acquired;
<PAGE>
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(i) Liens existing on any Property of any Person at the time such
Person becomes a Subsidiary or is merged or consolidated with or into a
Subsidiary and, in each case, not created in contemplation of or in
connection with such event; PROVIDED, HOWEVER, that such Liens do not extend
to any other Property of Borrower or the Subsidiaries;
(j) Liens (excluding Liens on Collateral) not otherwise permitted
hereunder securing obligations not at any time exceeding in the aggregate
$10.0 million;
(k) Liens securing obligations under Swap Contracts with Lenders;
(l) Liens consisting of judgment or judicial attachment Liens
(including prejudgment attachment) the enforcement of which is effectively
stayed or payment of which is covered in full (subject to a customary
deductible) by insurance or which do not otherwise result in an Event of
Default under Section 10(h);
(m) Liens securing obligations in respect of Capital Leases solely on
Property subject to such Capital Leases;
(n) the Barmet Option and the Alchem Option and the right of first
refusal of Barmet to purchase the Facility upon a third party offer therefor
pursuant to the terms of the Barmet Supply Agreement and the Barmet Right of
First Refusal, each as in effect on the date hereof;
(o) any extension, renewal or replacement of the foregoing; PROVIDED,
HOWEVER, that the Liens permitted hereunder shall not cover any additional
Indebtedness (other than Indebtedness permitted to be secured hereunder) or
Property (other than like Property substituted for Property covered by such
Lien);
(p) Liens on the facility of Rock Creek securing Indebtedness incurred
pursuant to Section 9.08(i); PROVIDED, HOWEVER, that such Liens do not extend
to or cover any Property of Borrower or any other Subsidiary; and
(q) Liens on inventory and receivables of Rock Creek securing the Rock
Creek Indebtedness; PROVIDED, HOWEVER, that (x) no such Lien extends to or
covers any other Property of Rock Creek or any Property of Borrower or any
Subsidiary other than Rock Creek and (y) such Liens are released and
discharged upon repayment of the Rock Creek Indebtedness as required by
Section 9.08(k).
Except with respect to (i) specific Property encumbered pursuant to
a Lien permitted to be incurred pursuant to this Section 9.07 or (ii)
specific Property to be sold pursuant to an executed agreement with respect
to a Disposition consummated in accordance with this Agreement, no Obligor
will, nor will any of them permit any of their respective Subsidiaries to,
directly or indirectly, enter into any agreement after the date hereof (other
than the Basic Documents) prohibiting or restricting in any manner (directly
or
<PAGE>
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indirectly and including by way of covenant, representation or warranty or
event of default) the creation or assumption of any Lien upon its Property,
whether now owned or hereafter acquired.
9.08 INDEBTEDNESS. No Obligor or Subsidiary shall, directly or
indirectly, create, incur or suffer to exist or be or become liable for any
Indebtedness, except (each of which shall be given independent effect):
(a) Indebtedness under the Basic Documents;
(b) Indebtedness outstanding on the date hereof and listed in
SCHEDULE 9.08 and specified on SCHEDULE 9.08 as to remain outstanding
after the Closing Date, and any refinancings, refundings, renewals or
extensions thereof on financial and other terms, in the reasonable
judgment of Borrower, no more onerous to Borrower or any Subsidiary in
the aggregate than the financial and other terms of such Indebtedness;
PROVIDED, HOWEVER, that the amount of such Indebtedness is not increased
at the time of such refinancing, refunding, renewal or extension and
such Indebtedness shall not have a stated maturity or an average life
shorter than that of the Indebtedness being refinanced;
(c) Indebtedness of Borrower or any Wholly Owned Subsidiary (other
than IMSAMET or any of its Subsidiaries or any of their successors)
owing to Borrower or any Wholly Owned Subsidiary which is an Obligor;
PROVIDED, HOWEVER, that such Indebtedness shall not be held by any
Person other than Borrower or a Wholly Owned Subsidiary which is an
Obligor and shall not be subordinate to any other Indebtedness or other
obligation of the obligor other than the Loans;
(d) Indebtedness of Borrower and the Subsidiaries secured by Liens
permitted under Section 9.07(h) or (m) not exceeding in the aggregate
$10.0 million at any one time outstanding;
(e) Indebtedness arising from honoring a check, draft or similar
instrument against insufficient funds; PROVIDED, HOWEVER, that such
Indebtedness is extinguished within two Business Days of its incurrence;
(f) obligations under operating leases permitted by Section 9.22
and Contingent Obligations permitted by Section 9.24;
(g) unsecured Indebtedness incurred by any Foreign Subsidiary not
to exceed $10.0 million in the aggregate at any time outstanding;
(h) unsecured Indebtedness of Borrower or any Subsidiary which is
an Obligor in an aggregate principal amount not to exceed, together with
Contingent Obligations (without duplication) under Section 9.24(d),
$10.0 million at any time outstanding;
<PAGE>
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(i) Indebtedness assumed in connection with the Rock Creek
Acquisition not to exceed $1.8 million in the aggregate at any time
outstanding less all repayments and prepayments thereof;
(j) Indebtedness represented by amounts declared, payable as, or
set apart for, Dividends permitted by Section 9.10;
(k) secured Indebtedness of Rock Creek to National City Bank in an
amount not to exceed $6.5 million outstanding at the time of
consummation of the Rock Creek Acquisition (the "ROCK CREEK
INDEBTEDNESS"); PROVIDED, HOWEVER, that, not later than 90 days after
the Closing Date, such Indebtedness shall be repaid in full and all
commitments related thereto shall be terminated and all Liens in respect
thereof shall be released (and evidence thereof shall be provided to the
Administrative Agent in form satisfactory to the Administrative Agent);
and
(l) unsecured Indebtedness in an amount not to exceed $6.0 million
incurred pursuant to revenue bonds that may be issued by the City of
Morgantown, Kentucky; PROVIDED, HOWEVER, that the proceeds therefrom are
applied to the prepayment of the Loans as required by Section
2.10(a)(ii).
All intercompany debt shall be unsecured and subordinate in right
of payment to the Obligations.
9.09 INVESTMENTS. No Obligor or Subsidiary shall, directly or
indirectly, make or permit to remain outstanding any Investments, except:
(a) operating deposit accounts and certificates of deposit with
banks in the ordinary course of business;
(b) Permitted Investments;
(c) Investments by Borrower or any Subsidiary (other than IMSAMET
or any of its Subsidiaries or any of their successors) in any Wholly
Owned Subsidiary that is an Obligor (other than IMSAMET or any of its
Subsidiaries or any of their successors) and Investments by any
Subsidiary (other than IMSAMET or any of its Subsidiaries or any of
their successors) in Borrower;
(d) Investments outstanding on the date hereof and identified with
particularity in SCHEDULE 9.09 and any renewals, extensions,
modifications and replacements thereof that do not increase the amount
thereof;
(e) Investments that constitute Indebtedness permitted under
Section 9.08 or Contingent Obligations permitted under Section 9.24;
(f) Investments by Borrower in Swap Contracts entered into as BONA
FIDE hedges and not for speculative purposes;
<PAGE>
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(g) advances, loans or extensions of credit by Borrower or any
Subsidiary to employees of Borrower or any Subsidiary; PROVIDED,
HOWEVER, that the aggregate amount of all such loans, advances and
extensions of credit shall not at any time exceed in the aggregate $1.0
million (without giving effect to any write-down or write-off thereof);
(h) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods or services in
the ordinary course of business;
(i) pledges or deposits required in the ordinary course of
business in connection with workmen's compensation, unemployment
insurance and other social security or similar legislation;
(j) pledges or deposits in connection with (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money),
leases or statutory obligations, (ii) contingent obligations on surety
or appeal bonds, and (iii) other non-delinquent obligations of a like
nature, in each case incurred in the ordinary course of business;
(k) Investments made in order to consummate Acquisitions;
PROVIDED, HOWEVER, that (w) no Default or Event of Default exists or
will result therefrom, (x) on a PRO FORMA basis, after giving effect to
such Acquisition(s), Borrower would have been in compliance with Section
9.11 on the last day of the most recently completed fiscal quarter
(assuming, for purposes of Section 9.11, that such Acquisition had
occurred on the first day of the Measurement Period ending on such last
day) as evidenced in an Officers' Certificate delivered to the
Administrative Agent and each Lender at least 10 days prior to the
consummation thereof, (y) the aggregate amount of the consideration
(which for each Acquisition shall be measured at the date of
consummation thereof and which shall include debt assumed, working
capital deficits and deferred payments) paid for all Acquisitions
consummated since the Closing Date shall not exceed $25.0 million and
(z) such Acquisition shall be effected through Borrower or a Wholly
Owned Subsidiary which is an Obligor (other than IMSAMET or any of its
Subsidiaries or any of their successors) (it being understood that
proceeds of Loans shall not be used to finance hostile acquisitions);
(l) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(m) Borrower and the Subsidiaries may hold additional Investments
in any non-Wholly Owned Subsidiary or Foreign Subsidiary or IMSAMET or
any of its Subsidiaries to the extent that such Investments reflect an
increase in Borrower's or any Subsidiary's interest in the stockholders'
equity of such Subsidiary resulting from retained earnings of such
Subsidiary;
<PAGE>
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(n) any Foreign Subsidiary may make Investments in or to any other
Foreign Subsidiary;
(o) Capital Expenditures permitted by Section 9.11(d);
(p) Investments by Borrower or any Subsidiary in any non-Wholly
Owned Subsidiary or any Subsidiary which is not an Obligor or in IMSAMET
or any of its Subsidiaries (including Foreign Subsidiaries); in each
case to the extent made in the ordinary course to fund or support the
ordinary course operations of such Subsidiary so long as no Event of
Default shall have occurred and be continuing; PROVIDED, HOWEVER, that
(x) the amount of such Investments made pursuant to this clause (p)
shall not exceed $5.0 million in the aggregate outstanding at any time
(without giving effect to any write-down or write-off thereof) and (y)
upon the request of the Majority Lenders all such Investments evidenced
by Intercompany Notes shall be pledged to the Administrative Agent
pursuant to the Security Agreement;
(q) Investments for the creation of any Wholly Owned Foreign
Subsidiary which is a foreign sales corporation consisting of de minimis
capitalization;
(r) the consummation of the IMSAMET Acquisition so long as IMSAMET
and its Subsidiaries remain Subsidiaries of Borrower;
(s) Investments consisting of non-cash consideration received in
the form of securities, notes or similar obligations in connection with
a Disposition permitted by Section 9.06(j); PROVIDED, HOWEVER, that (i)
the aggregate amount of such non-cash consideration received in
connection with any such Disposition shall not exceed 10% of the total
consideration received in connection with such Disposition and (ii) such
non-cash consideration is pledged pursuant to the appropriate Security
Document;
(t) Investments by Foreign Subsidiaries in high quality
investments of the type similar to Permitted Investments made outside
the United States;
(u) Investments made to consummate any Acquisition with the Net
Available Proceeds of any Disposition effected in accordance with
Section 9.06(j) to the extent such Net Available Proceeds have not been
used to effect Capital Expenditures pursuant to Section 9.11(d)(2) or
otherwise expended by Borrower or any Subsidiary; PROVIDED, HOWEVER,
that (x) no Default or Event of Default exists or would result
therefrom, (y) on a PRO FORMA basis, immediately after giving effect to
any such Acquisition, Borrower would be in compliance with the financial
covenants set forth in Section 9.11 on the last day of the most recently
ended fiscal quarter (assuming, for purposes of Section 9.11, that such
Acquisition has occurred on the first day of the Measurement Period
ending on such last day) as evidenced in an Officers' Certificate
delivered to the Administrative Agent and the Lenders at least 10 days
prior to the consummation of such Acquisition and (z) such Acquisition
shall be effected through Borrower or a Wholly Owned Subsidiary which is
an Obligor (other than IMSAMET or any of its Subsidiaries);
<PAGE>
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(v) Investments made to consummate any Acquisition in an amount in
any fiscal year not to exceed the amount that would have been permitted
at the time of consummation of such Acquisition to be made as a Capital
Expenditure pursuant to Section 9.11(d)(1) (after taking into account
the then permitted amount thereunder and the aggregate amount of Capital
Expenditures made and the aggregate amount expended for other
Acquisitions effected pursuant to this Section 9.09(v), in each case on
or prior to the date of consummation of such Acquisition); PROVIDED,
HOWEVER, that (x) no Default or Event of Default exists or would result
therefrom, (y) on a PRO FORMA basis, immediately after giving effect to
any such Acquisition, Borrower would be in compliance with all financial
covenants set forth in Section 9.11 on the last day of the most recently
ended fiscal quarter (assuming, for purposes of Section 9.11, that such
Acquisition had occurred on the first day of the Measurement Period
ending on such last day) as evidenced in an Officers' Certificate
delivered to the Lenders at least 10 days prior to the consummation of
such Acquisition and (z) such Acquisition shall be effected through
Borrower or a Wholly Owned Subsidiary which is an Obligor (other than
IMSAMET or any of its Subsidiaries);
(w) additional Investments in VAW-IMCO in an aggregate principal
amount not to exceed $5.0 million outstanding at any time (without
giving effect to any write-down or write-off thereof);
(x) Borrower or any Subsidiary may hold the capital stock,
partnership interests or other ownership or equity interest therein of
any Subsidiary existing on the Closing Date or created or acquired
thereafter in accordance with the provisions hereof and any additional
capital stock, partnership interests or ownership or equity interests
issued in exchange therefor or as a dividend thereon;
(y) the acquisition by Borrower or a Wholly Owned Subsidiary of
all of the issued and outstanding capital stock of Rock Creek Aluminum,
Inc., an Ohio corporation ("ROCK CREEK"), pursuant to the terms of the
Rock Creek Acquisition Agreement as in effect on the date hereof (the
"ROCK CREEK ACQUISITION");
(z) the making of a loan to the Atlanta Entity (as defined in the
Rock Creek Acquisition Agreement) in an amount not to exceed $1.0
million pursuant to the terms of the Rock Creek Acquisition Agreement;
(aa) Investments in IMCO Recycling (U.K.) Ltd., a Wholly Owned
Foreign Subsidiary, in an aggregate amount not exceeding $15.0 million
outstanding at any time (without giving effect to write-down or
write-off thereof);
(bb) Investments in a joint venture between Borrower or a
Subsidiary and Alumatech, in an aggregate amount not exceeding $10.0
million outstanding at any time (without giving effect to any write-down
or write-off thereof);
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(cc) additional Investments in IMCO Recycling of Michigan L.L.C., a
Subsidiary, in an aggregate amount, which when added to all Investments
therein existing as of the Closing Date do not exceed $20.0 million
outstanding at any time (without giving effect to any write-down or
write-off thereof); and
(dd) in addition to the foregoing, other Investments not exceeding
$10.0 million in the aggregate outstanding at any time (without giving
effect to any write-downs or write-offs thereof), net of any returns of
capital, cash dividends and distributions received in respect thereof
and net cash proceeds of sales thereof.
9.10 DIVIDEND PAYMENTS. No Obligor or Subsidiary shall, directly
or indirectly, declare or make any Dividend Payment at any time, except that:
(a) any Subsidiary may declare and make Dividend Payments to the
extent made PRO RATA to all holders of the capital stock thereof; and
(b) so long as no Default or Event of Default shall have occurred
and be continuing, Borrower may declare and make cash Dividend Payments
on its capital stock not to exceed $3.5 million in the aggregate in each
of fiscal 1997 and fiscal 1998; $4.0 million in the aggregate in each of
fiscal 1999 and fiscal 2000; and $6.0 million in the aggregate in any
fiscal year thereafter.
9.11 FINANCIAL COVENANTS.
(a) MAXIMUM LEVERAGE RATIO. Borrower shall not permit the
Leverage Ratio at any time during any period set forth in the table
below to exceed the ratio set forth opposite such period in the table
below:
----------------------------------------------------------------
----------------------------------------------------------------
PERIOD RATIO
----------------------------------------------------------------
Closing Date through 12/31/1997 3.75:1.0
----------------------------------------------------------------
1/1/1998 through 12/31/1998 3.25:1.0
----------------------------------------------------------------
1/1/1999 and thereafter 2.75:1.0
----------------------------------------------------------------
----------------------------------------------------------------
(b) MINIMUM INTEREST COVERAGE RATIO. Borrower shall not permit
the Interest Coverage Ratio for any Measurement Period ending during any
period set forth in the table below to be less than the ratio set forth
opposite such period in the table below:
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=============================================================================
PERIOD RATIO
- -----------------------------------------------------------------------------
Closing Date through 12/31/1997 1.50:1.0
- -----------------------------------------------------------------------------
1/1/1998 through 12/31/1998 2.00:1.0
- -----------------------------------------------------------------------------
1/1/1999 through 12/31/1999 2.25:1.0
- -----------------------------------------------------------------------------
1/1/2000 and thereafter 2.50:1.0
=============================================================================
(c) MINIMUM CONSOLIDATED NET WORTH. Borrower shall not permit
Consolidated Net Worth at any time after the Closing Date to be less
than $75.0 million, PLUS the sum of (x) 50% of consolidated net income of
Borrower determined in accordance with GAAP for each such fiscal quarter
(if positive) occurring after the Closing Date and (y) 100% of the net
proceeds of any Equity Issuance.
(d) CAPITAL EXPENDITURES. (1) Borrower shall not permit the
aggregate amount of Capital Expenditures made by Borrower and the
Subsidiaries to exceed $38.0 million during fiscal 1997 and $20.0 million
during any fiscal year of Borrower thereafter; PROVIDED, HOWEVER, that
(x) if the aggregate amount of Capital Expenditures for any fiscal year
shall be less than the amount permitted for such fiscal year (before
giving effect to any carryover), then the shortfall may be added to the
amount of Capital Expenditures permitted for the immediately succeeding
(but not any other) fiscal year if the amount expended in such fiscal year
would not exceed 120% of the amount permitted for such fiscal year (before
any carryover) and (y) in determining whether any amount is available for
carryover, the amount expended in any fiscal year shall first be deemed to
be from the amount allocated to such year before any carryover.
(2) Notwithstanding anything herein to the contrary, so long as
no Default or Event of Default shall have occurred and be continuing,
Borrower and the Subsidiaries may make Capital Expenditures with the Net
Available Proceeds of any Disposition effected in accordance with Section
9.06(j) to the extent that such Net Available Proceeds have not been used
to effect an Acquisition in accordance with Section 9.09(u) or otherwise
expended by Borrower or any Subsidiary.
(e) MEASUREMENT DATES. The covenants in clauses (a), (b) and (c) of
this Section 9.11 shall be measured as of the end of each fiscal quarter,
beginning with March 31, 1997.
9.12 PLEDGE OF ADDITIONAL COLLATERAL. Promptly, and in any event
within 30 days, after the acquisition of any Property of the type that would
have constituted Collateral at the Closing Date (including the capital stock
of any Subsidiary hereafter created or acquired) other than Real Property
(the "ADDITIONAL COLLATERAL"), each Obligor and each Wholly Owned Subsidiary
(other than any Foreign Subsidiary) shall take all action necessary or
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desirable, including the execution and delivery of all such agreements,
assignments, documents and instruments (including amendments to the Basic
Documents) and the filing of appropriate financing statements under the
provisions of the UCC or applicable governmental requirements in each of the
offices where such filing is necessary or appropriate, to grant the
Administrative Agent for the benefit of the Lenders a duly perfected first
priority Lien on such Property pursuant to and to the full extent required by
the Security Documents and this Agreement; PROVIDED, HOWEVER, that (i) not
more than 65% of the capital stock of any Foreign Subsidiary need be pledged,
(ii) no capital stock of the Barmet Option Entity to be issued or sold to
Barmet pursuant to the Barmet Option need be pledged and (iii) Rock Creek
need not take such action with respect to its Property until the Rock Creek
Indebtedness has been repaid as required by Section 9.08(k). The costs of
all actions taken by the parties in connection with the pledge of Additional
Collateral or in connection with any Mortgage, including reasonable costs of
counsel for the Administrative Agent, shall be paid by the Obligors promptly
following written demand.
9.13 SECURITY INTERESTS. (a) Each Obligor and each Subsidiary
shall, promptly, upon the reasonable request of any Lender, at Borrower's
expense, execute, acknowledge and deliver, or cause the execution,
acknowledgement and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by the Administrative Agent necessary
or desirable for the continued validity, perfection and priority of the Liens
on the collateral covered thereby.
(b) Each Obligor and each Subsidiary shall deliver or cause to be
delivered to the Administrative Agent from time to time such other
documentation, consents, authorizations, approvals and orders in form
and substance reasonably satisfactory to the Administrative Agent as
the Administrative Agent shall reasonably deem necessary to perfect or
maintain the Liens on the Collateral.
9.14 COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) Each Obligor and
each Subsidiary shall comply with all Environmental Laws, and will keep or
cause all Real Property to be kept free of any Liens under Environmental
Laws, unless failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; (b) in the event
of the presence of any Hazardous Material at, on or under any Real Property
which would reasonably be expected to result in liability under or a
violation of any Environmental Law, in each case which would, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, each Obligor and each Subsidiary shall undertake, and/or
cause any of their respective tenants or occupants to undertake, at their
sole expense, any action required pursuant to Environmental Laws to mitigate
and eliminate any such adverse effect; PROVIDED, HOWEVER, that no Obligor or
Subsidiary shall be required to comply with any order or directive which is
being contested in good faith and by proper proceedings so long as it has
maintained adequate reserves with respect to such compliance to the extent
required in accordance with GAAP; and (c) each Obligor shall promptly notify
the Administrative Agent of the occurrence of any event
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specified in clause (b) of this Section 9.14 and shall periodically thereafter
keep the Administrative Agent informed of any material actions taken in
response to such event and the results of such actions.
9.15 LINES OF BUSINESS. No Obligor or Subsidiary shall directly
or indirectly, engage to any substantial extent in any line or lines of
business activity other than the business of the type conducted by Borrower
and the Subsidiaries as of the Closing Date.
9.16 TRANSACTIONS WITH AFFILIATES. No Obligor or Subsidiary
shall, directly or indirectly: enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property, the rendering of any service, or a merger or consolidation), with
any Affiliate (an "AFFILIATE TRANSACTION") unless such Affiliate Transaction
is otherwise not prohibited under this Agreement, is in the ordinary course
of the Obligor's business and is on fair and reasonable terms that are not
less favorable to the Obligor than those that would be obtainable at the time
in an arm's-length transaction with a Person who is not such an Affiliate.
9.17 LIMITATION ON ACCOUNTING CHANGES; LIMITATION ON INVESTMENT
COMPANY STATUS. No Obligor or Subsidiary shall make or permit, any change in
(i) accounting policies or reporting practices, except immaterial changes and
except as required by generally accepted accounting principles or (ii) its
fiscal year end (December 31 of each year). No Obligor shall be or become an
investment company subject to the registration requirements under the
Investment Company Act of 1940, as amended.
9.18 MODIFICATIONS OF CERTAIN DOCUMENTS, ETC. No Obligor or
Subsidiary shall, directly or indirectly, (a) consent to any modification,
supplement or waiver of any of the provisions of any Document where the
effect of such modification, supplement or waiver would be material and
adverse to the interest of the Lenders without the prior written approval of
the Majority Lenders; and (b) amend, modify or change in any manner which
could be materially adverse to the Lenders its certificate of incorporation
or its by-laws (or any other organizational document), or any agreement
entered into with respect to its capital stock, or enter into any new
agreement with respect to its capital stock in any manner which would be
materially adverse to the Lenders.
9.19 INTEREST RATE PROTECTION AGREEMENTS. Borrower shall obtain,
on or within 90 days after the Closing Date, Interest Rate Protection
Agreements having terms and with counterparties reasonably satisfactory to
the Administrative Agent and the Required Lenders as shall result in
effectively limiting the interest cost to Borrower of 40% of the aggregate
principal amount of then outstanding Term Loans for a period of at least
three years from the date the initial Interest Rate Protection Agreements
were obtained.
9.20 LIMITATION ON CERTAIN RESTRICTIONS AFFECTING SUBSIDIARIES.
No Obligor or Subsidiary shall, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction
on the ability of any such Subsidiary to (a) except as provided in the Rock
Creek Indebtedness, pay dividends or make any other distributions
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on such Subsidiary's capital stock or any other interest or participation in
its profits owned by Borrower or any Subsidiary, or pay any Indebtedness or
any other obligation owed to Borrower or any Subsidiary, (b) make Investments
in or to Borrower or any Subsidiary or (c) transfer any of its Property to
Borrower or any Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) the Basic Documents,
(iii) such restrictions with respect to the transfer of those assets subject
to a Lien permitted under Section 9.07, (iv) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of
Borrower or any Subsidiary, (v) with respect to restrictions described in
clause (c) only, restrictions in any agreement relating to any Disposition
which is permitted under this Agreement and (vi) the Alchem Option and the
Barmet Option.
9.21 ADDITIONAL OBLIGORS. Upon Borrower or any Wholly Owned
Subsidiary creating or acquiring a Wholly Owned Subsidiary (other than a
Foreign Subsidiary) after the date hereof (each such Subsidiary referred to
herein as an "ADDITIONAL OBLIGOR" and collectively as the "ADDITIONAL
OBLIGORS"), Borrower shall cause such Wholly Owned Subsidiary to execute and
deliver a Joinder Agreement substantially in the Form of EXHIBIT K and all
such other agreements, guarantees, documents and certificates (including any
amendments to the Basic Documents) as the Administrative Agent may reasonably
request and do such other acts and things as the Administrative Agent may
reasonably request in order to have such Wholly Owned Subsidiary guarantee
the Obligations in accordance with the terms of the Basic Documents and
pledge all Property (other than Real Property) pursuant to the Security
Agreement; PROVIDED, HOWEVER, that with respect to Rock Creek, such actions
required by this Section 9.21 need not be taken until the Rock Creek
Indebtedness has been repaid as required by Section 9.08(k).
9.22 RESTRICTION ON LEASES. No Obligor or Subsidiary shall,
become liable in any way, whether, directly or by assignment or as a
guarantor or other surety, for the obligations of the lessee under any
operating lease, unless, immediately after giving effect to the incurrence of
liability with respect to such lease, the Consolidated Rental Payments of
Borrower at the time in effect shall not exceed $3.0 million PER ANNUM.
9.23 SALE OR DISCOUNT OF RECEIVABLES. No Obligor or Subsidiary
shall, directly or indirectly, sell, with or without recourse, or discount,
or otherwise sell for less than the face value thereof, notes or accounts
receivables, other than in connection with trade discounts in the ordinary
course of business or consistent with past practice and other than as
permitted by Section 9.06(h) or (i).
9.24 CONTINGENT OBLIGATIONS. No Obligor or Subsidiary shall,
directly or indirectly, create or become or be liable with respect to any
Contingent Obligation, except:
(a) pursuant to Section 6;
(b) Contingent Obligations in respect of operating leases to the
extent permitted under Section 9.22;
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(c) Contingent Obligations of Borrower or any Subsidiary in respect
of Indebtedness or other liabilities of Borrower or any Wholly Owned
Subsidiary which is an Obligor (other than IMSAMET or any of its
Subsidiaries or any of their successors) to the extent that the existence
of such Indebtedness or other liabilities is not prohibited under this
Agreement;
(d) other Contingent Obligations which, together with the amount of
Indebtedness incurred under Section 9.08(h) (but without duplication),
does not exceed $10.0 million in the aggregate at any time outstanding;
(e) endorsements for collection or deposit in the ordinary course of
business;
(f) Contingent Obligations of Borrower and the Subsidiaries existing
as of the Closing Date and listed in SCHEDULE 8.02 and renewals,
extensions, modifications and replacements thereof that do not increase
the amount thereof or provide for terms materially less favorable to any
Obligor;
(g) Swap Contracts entered into in the ordinary course of business
and designed to protect the Obligors against fluctuations in interest
rates, currency exchange rates, commodity prices or similar risks
(including any Interest Rate Protection Agreement entered into pursuant
to Section 9.19); and
(h) Contingent Obligations in connection with Dispositions permitted
under Section 9.06, arising in connection with indemnification and other
agreements in respect of any contract relating to such Disposition, not to
exceed the consideration received by Borrower or any Subsidiary in
connection with such sale and excluding in all cases any Contingent
Obligation with respect to any obligation of any third person incurred in
connection with the acquisition of the Property which is the subject of
such Disposition.
9.25 JOINDER BY SUBSIDIARIES. Borrower shall cause each Subsidiary
set forth on SCHEDULE 1.01(a) that is not a party to this Agreement to execute
and deliver on the Closing Date a Joinder Agreement substantially in the form
of EXHIBIT K.
9.26 POST CLOSING OBLIGATIONS. Borrower shall, and shall cause each
of the Subsidiaries, as expeditiously as possible but in no event later than
the time specified, if any, after the Closing Date to:
(a) with respect to each of the Real Properties described in
clauses (i) through (vii) below, obtain and deliver to the appropriate
Title Company, the Administrative Agent and counsel to the Arranger,
as appropriate, on or before May 22, 1997, (A) current Surveys and (B)
zoning endorsements or letters from the appropriate Governmental
Authority confirming that (x) each of such real properties is in
compliance with or (y) such Governmental Authority is not aware of any
noncompliance with the applicable current zoning regulations:
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(i) the real property commonly known as 388 Williamson Drive,
Blair Bend Industrial Park, Loudon, TN 37774;
(ii) the real property commonly known as 1005 4th Street,
Bedford, IN 47421;
(iii) the real property commonly known as 400 E. Lincoln Hwy.,
P.O. Box 751, Chicago Heights, IL 60411;
(iv) the real property commonly known as 1508 North 8th Street,
Highway 97 North, Sapulpa, OK 74066;
(v) the real property commonly known as 609 Gardner Camp Road,
Highway 1468, Morgantown, KY 42261;
(vi) the real property commonly known as Highway 27 South,
Rockwood, TN 37854; and
(vii) the real property commonly known as West 4000 Prairie
Avenue, Post Falls, ID 83854;
(b) obtain and deliver to the Administrative Agent and counsel to
the Arranger updated title commitments and any and all endorsements with
respect to the properties described in clauses (i) through (vii) of the
immediately preceding paragraph which omit from such title insurance
commitment any survey exceptions and any other related exception which
the Administrative Agent deems necessary.
(c) obtain and deliver to the Administrative Agent a Mortgage
encumbering the Real Property located in Sapulpa, Oklahoma in favor of the
Administrative Agent, for the benefit of the Lenders, duly executed and
acknowledged by the owner of, or holder of, an interest in such Real
Property and otherwise in compliance with and in accordance with the
provisions of subsection (1) of Section 7.01(viii) (it being understood
that the Lenders shall pay the mortgage recording tax with respect thereto
in proportion to their total amount of commitments and Loans outstanding);
(d) with respect to the Real Property located in Sapulpa,
Oklahoma, obtain and deliver to the Administrative Agent (i) on or before
February 28, 1997, a title insurance commitment insuring the lien and
priority of the mortgage encumbering the Real Property located in Sapulpa,
Oklahoma and (ii) any and all documents, instruments, certificates and
Surveys as more specifically set forth in subsections (2) through (11) of
Section 7.01 (viii);
(e) obtain and deliver to the Administrative Agent evidence of the
completion of all recordings and filings of, or with respect to, the
Security Documents and delivery of such other security and other documents
as may be necessary or, in
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the opinion of the Administrative Agent, desirable to perfect the Liens
created, or purported or intended to be created, by the Security Documents;
and
(f) obtain and deliver to the Administrative Agent within three
weeks after the Closing Date, with respect to each Real Property and each
Mortgaged Real Property, UCC, judgment and tax lien searches at the state
and local level with respect to each of the following entities in the
jurisdictions set forth on SCHEDULE 9.26, each of which searches shall be
satisfactory to the Administrative Agent. In the event that any of such
searches shall disclose Liens that are not Permitted Liens or, with respect
to Liens affecting the Collateral, Liens that are of a type that would
constitute Prior Liens, then the Borrower shall take all action pursuant
to Section 9.13(a) reasonably necessary or requested by the Administrative
Agent to release and terminate such Lien.
Section 10. EVENTS OF DEFAULT. If one or more of the following
events (herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) Borrower shall default in the payment when due (whether at
stated maturity, upon prepayment or repayment or acceleration or otherwise)
of any principal of any Loan or (ii) Borrower shall default in the payment
when due of interest on any Loan or any Reimbursement Obligation or any fee
or any other amount payable by it hereunder or under any other Basic
Document when due and such default under this clause (ii) shall have
continued unremedied for five or more Business Days; or
(b) Borrower or any Subsidiary (Borrower and such Subsidiaries herein
collectively called the "RELEVANT PARTIES" and each, a "RELEVANT PARTY")
shall default in the payment when due of any principal of or interest on
any of its Indebtedness (other than the Loans) aggregating $5.0 million or
more, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created, after giving effect
to any consents or waivers relating thereto obtained before the expiration
of any such period of grace; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any Indebtedness
aggregating $5.0 million or more if the effect of such event (after giving
effect to any consents or waivers relating thereto obtained before the
expiration of any such period of grace) is to cause, or (with the giving of
any notice or the lapse of time or both) to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity; or any Relevant Party shall default in the
payment when due of any amount aggregating $500,000 or more under any Swap
Contract; or any event specified in any Swap Contract shall occur if the
effect of such event is to cause, or (with the giving of notice or the
lapse of time or both) to permit, termination or liquidation payments
aggregating $5.0 million or more to become due; or
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(c) Any representation or warranty made or deemed made in any Basic
Document (or in any modification or supplement thereto) by any Relevant
Party, or in any certificate furnished to any Creditor pursuant to the
provisions thereof, shall prove to have been false or misleading as of
the time made, deemed made or furnished in any material respect; or
(d) Any Obligor or any Subsidiary shall default in the performance
of any of its obligations under any of Sections 9.05 through 9.26 (other
than Section 9.14 and Section 9.19); or any Obligor or any Subsidiary shall
default in the performance of any of its obligations under Section 9.14 or
9.19 and such default shall continue unremedied for 30 days or more after
notice; or any Obligor shall default in the performance of any of its
obligations under Section 5.02 of the Security Agreement and such default
shall continue unremedied for 10 days or more; or Borrower shall default in
the performance of its obligations under Section 9.01(e) and such default
shall continue unremedied for 10 Business Days or more after notice to
Borrower; or any Obligor or any Subsidiary shall default in the performance
of any of its other obligations in this Agreement, the Security Documents
or the Letter of Credit Documents and such default shall continue
unremedied for a period of thirty days or more after written notice thereof
to such Obligor or Borrower by the Administrative Agent; or
(e) Any Relevant Party shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) Any Relevant Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
Property, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code (as now or
hereafter in effect), (iv) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, winding-
up, or composition or readjustment of debts, (v) fail to controvert within
60 days or in a timely and appropriate manner, or acquiesce in writing to,
any petition filed against it in an involuntary case under the Bankruptcy
Code, or (vi) take any corporate action for the purpose of effecting any of
the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the affected Relevant Party, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of
such Relevant Party or of all or any substantial part of its assets, or
(iii) similar relief in respect of such Relevant Party under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and either (1) such proceeding shall
not be actively contested by such Relevant Party, or (2) such proceeding
or case shall continue undismissed, undischarged or unbonded, or an order,
judgment or decree approving or ordering
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any of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against any
Relevant Party shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess
of $5.0 million in the aggregate (exclusive of judgment amounts to the
extent covered by insurance) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against any
Relevant Party and the same shall not be discharged (or provision shall not
be made for such discharge), vacated or bonded pending appeal, or a stay of
execution thereof shall not be procured, within 45 days from the date of
entry thereof and such Relevant Party shall not, within said period of 45
days, or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(i) Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $1.0 million which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed
to administer any Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could reasonably be expected to cause one or more members of the
ERISA Group to incur a payment obligation in excess of $5.0 million; or
(j) Any Change of Control; or
(k) Any Security Document after delivery thereof at any time shall
cease to be in full force and effect or shall for any reason fail to create
or cease to maintain a valid and duly perfected first priority security
interest in and Lien upon a material portion of the Collateral; or
(l) Any Guarantee ceases to be in full force and effect or any of the
Subsidiary Guarantors repudiates, or attempts to repudiate, any of its
obligations under any of the Guarantees;
THEREUPON: (1) in the case of an Event of Default other than one referred to
in clause (f) or (g) of this Section 10, the Administrative Agent may, and
upon written direction of the Majority Lenders shall, by notice to Borrower,
terminate the Commitments and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans, the Reimbursement
Obligations and all other amounts payable by Borrower hereunder and
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under the Notes (including any amounts payable under Section 5.05 or 5.06) to
be forthwith due and payable, whereupon such amounts shall be immediately due
and payable without presentment, demand, protest or other formalities of any
kind, all of which are hereby expressly waived by Borrower, reduce any claim
to judgment, take any other action permitted by law and/or take any action
permitted to be taken by the Security Documents during the existence of an
Event of Default; and (2) in the case of the occurrence of an Event of
Default referred to in clause (f) or (g) of this Section 10, the Commitments
shall automatically be terminated and the principal amount then outstanding
of, and the accrued interest on, the Loans, the Reimbursement Obligations and
all other amounts payable by Borrower hereunder and under the Notes
(including any amounts payable under Section 5.05 or 5.06) shall
automatically become immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by Borrower.
In addition, Borrower agrees, upon the occurrence and during the
continuance of any Event of Default if the Administrative Agent has declared
the principal amount then outstanding of, and accrued interest on, the
Revolving Credit Loans, and all other amounts payable to the Revolving Credit
Lenders hereunder and under the Notes evidencing such Loans to be due and
payable, it may and shall, if requested by the Majority Revolving Credit
Lenders through the Administrative Agent (and, in the case of any Event of
Default referred to in clause (f) or (g) of this Section 10 with respect to
any Relevant Party, forthwith, without any demand or the taking of any other
action by the Administrative Agent or such Lenders) provide cover for the
Letter of Credit Liabilities by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit, which funds shall be held by the
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit Liabilities and be subject to
withdrawal only as provided in the Security Agreement.
Section 11. THE ADMINISTRATIVE AGENT.
11.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent under
the Basic Documents with such powers as are specifically delegated to the
Administrative Agent by their terms, together with such other powers as are
reasonably incidental thereto. Neither the Administrative Agent nor the
Arranger (which term as used in this sentence and in Section 11.05 and the
first sentence of Section 11.06 shall include reference to their respective
Affiliates and their own and their respective Affiliates' officers,
directors, employees, attorneys and agents):
(a) shall have any duties or responsibilities except those expressly
set forth in the Basic Documents, or shall by reason of any Basic Document
or the performance of its duties thereunder be a trustee or fiduciary for
any Lender or any Obligor;
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(b) shall be responsible to the Lenders for any recitals, statements,
representations or warranties contained in any Basic Document, or in any
certificate or other document referred to or provided for in, or received
by any of them under, any Basic Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Basic
Document or any other document referred to or provided for herein or
therein or for any failure by Borrower or any other Person to perform any
of its obligations thereunder;
(c) shall, except to the extent expressly instructed pursuant to the
provisions of this Agreement by the Majority Lenders with respect to
collateral security under the Security Documents, be required to initiate
or conduct any litigation or collection proceedings under any Basic
Document;
(d) shall be responsible or liable to any Lender for any action taken
or omitted to be taken by it hereunder or under any other Basic Document or
under any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct;
(e) in performing its functions and duties under the Credit
Documents, shall assume or shall be deemed to have assumed any obligation
towards or relationship of agency or trust with or for any Obligor, other
than with respect to the Register, (it being understood that the provisions
of this Section 11 are solely for the benefit of the Creditors, and no
Obligor shall have any rights as a third-party beneficiary of any of the
provisions hereof); or
(f) shall be under any obligation to take any action hereunder or
under any other Basic Document if the Administrative Agent determines that
taking such action may conflict with any law or any provision of any Basic
Document, or may require the Administrative Agent to qualify to do business
in any jurisdiction where it is not then so qualified.
The Administrative Agent may employ and consult with agents, attorneys-in-fact,
independent public accountants, attorneys, and other experts and consultants
selected by it, and shall not be responsible or liable for the negligence,
gross negligence or misconduct of any such Person reasonably selected. The
Administrative Agent shall not be responsible or liable for any action taken
or omitted to be taken in good faith by it in accordance with the advice of
such counsel, accountants, experts or other advisor. The Administrative
Agent may deem and treat the payee of a Note as the holder thereof for all
purposes hereof unless and until a notice of the assignment or transfer
thereof shall have been filed with the Administrative Agent, together with
any necessary consents required by Section 12.06. The Arranger, as such,
shall not have any independent duties or obligations under any Basic Document.
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11.02 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telecopy, telegram or
cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons. As to any matters not
expressly provided for by this Agreement or any other Basic Document, the
Administrative Agent shall in all cases be fully protected insofar as the
Lenders are concerned in acting, or in refraining from acting, hereunder or
thereunder in accordance with instructions given by the Majority Lenders or,
if provided herein, in accordance with the instructions given by the Majority
Revolving Credit Lenders, the Majority Term Lenders or all of the Lenders as
is required in such circumstance, and such instructions of such Lenders and
any action taken or failure to act pursuant thereto shall be binding on all
of the Lenders; PROVIDED, HOWEVER, that the Administrative Agent shall not be
required to take any action which exposes the Administrative Agent to any
responsibility or liability or which is contrary to any Basic Document or
applicable law.
11.03 DEFAULTS. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received notice from a Lender or Borrower specifying
such Default and stating that such notice is a "Notice of Default" under this
Agreement or another Basic Document. In the event that the Administrative
Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Sections 11.01, 11.02, 11.07, 12.03
and 12.04) take such action with respect to such Default as shall be directed
by the Majority Lenders or, if provided herein, the Majority Revolving Credit
Lenders; PROVIDED, HOWEVER, that, unless and until the Administrative Agent
shall have received such directions, 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 Lenders.
11.04 RIGHTS AS A LENDER. With respect to its Commitments and the
Loans made by it, Texas Commerce Bank National Association (and any successor
acting as Administrative Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as the Administrative Agent,
and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include Texas Commerce Bank National Association in its individual
capacity. Texas Commerce Bank National Association (and any successor acting
as Administrative Agent) and its Affiliates may (without having to account
therefor to any Lender) accept deposits from, lend money to, act as trustee
under indentures of, provide merchant banking services to, own securities of,
make investments in and generally engage in any kind of banking, trust or
other business with the Obligors (and any of their Subsidiaries or
Affiliates) as if it were not acting as the Administrative Agent, and Texas
Commerce Bank National Association (and any such successor) and its
Affiliates may accept fees and other consideration from the Obligors for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders. Each Lender acknowledges the potential
conflict of interest between Texas Commerce Bank National Association (i) as
a Lender which may hold disproportionate interests in the various Commitments
and/or Loans
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and (ii) as the Administrative Agent under this Agreement and each Lender
expressly consents to, and waives any claim based upon, such potential
conflicts of interest.
11.05 INDEMNIFICATION. Each Lender agrees to indemnify and hold
harmless the Administrative Agent and the Arranger (to the extent not
promptly reimbursed under Section 12.03, but without limiting the obligations
of Borrower under Section 12.03), ratably in accordance with the aggregate
principal amount of the Loans and Reimbursement Obligations held by the
Lenders (or, if no Loans or Reimbursement Obligations are at the time
outstanding, ratably in accordance with their respective Commitments), for
any and all liabilities (including pursuant to any Environmental Law),
obligations, losses, damages, penalties, actions, judgments, deficiencies,
suits, costs, expenses (including reasonable attorney's fees) or
disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against the Administrative Agent or the Arranger
(including by any Lender) arising out of or by reason of any investigation in
or in any way relating to or arising out of any Basic Document or any other
documents contemplated by or referred to therein for any action taken or
omitted to be taken by the Administrative Agent or the Arranger under or in
respect of any of the Basic Documents or other such documents or the
transactions contemplated thereby (including the costs and expenses that
Borrower is obligated to pay under Section 12.03, and including also any
payments under any indemnity that the Administrative Agent is required to
issue to any Lender referred to in Section 4.01(c) of the Security Agreement,
or to any bank referred to in Section 4.02 of the Security Agreement to which
remittances in respect of Accounts, as defined therein, are to be made, but
excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or
of any such other documents; PROVIDED, HOWEVER, that no Lender shall be
liable for any of the foregoing to the extent they are determined by a court
of competent jurisdiction in a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of the party to be
indemnified. The agreements set forth in this Section 11.05 shall survive
the payment of all Loans and other obligations hereunder and shall be in
addition to and not in lieu of any other indemnification agreements contained
in any other Basic Document.
11.06 NON-RELIANCE ON ADMINISTRATIVE AGENT, ARRANGER AND OTHER
LENDERS. Each Lender agrees that it has, independently and without reliance
on any other Creditor, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of Borrower and the
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon any other Creditor, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own analysis and decisions in taking or not taking action under
any Basic Document. Neither the Administrative Agent nor the Arranger shall
be required to keep itself informed as to the performance or observance by
any Obligor of any of the Basic Documents or any other document referred to
or provided for therein or to inspect the Properties or books of Borrower or
any Subsidiary. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or under the Security Documents, neither the
Administrative Agent nor the Arranger shall have any duty or
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responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of Borrower or any
Subsidiary (or any of their Affiliates) that may come into the possession of
the Administrative Agent or the Arranger or any of their respective
Affiliates.
11.07 FAILURE TO ACT. The Administrative Agent shall in all cases
be fully justified in failing or refusing to act under any Basic Document
unless it shall receive further assurances to its satisfaction from the
Lenders of their indemnification obligations under Section 11.05 against any
and all liability and expense that may be incurred by it by reason of taking
or continuing to take any such action. In addition, the Administrative Agent
shall have no obligation whatsoever for any action which it reasonably and in
good faith believes may violate applicable law.
11.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to
the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving 30
days' notice thereof to the Lenders and Borrower, and the Administrative
Agent may be removed at any time with or without cause by the Majority
Lenders, with the consent of Borrower (not to be unreasonably withheld or
delayed) absent an Event of Default existing at such time (the determination
of Majority Lenders for purposes of this Section 11.08 to be made without
reference to any Commitments, Loans or Letter of Credit Liabilities held by
the Administrative Agent). Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties, liabilities and obligations hereunder.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Section 11, Section 12.03 and
all other similar provisions 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.
11.09 CONSENTS UNDER OTHER BASIC DOCUMENTS. Except as otherwise
provided in Section 12.04 with respect to this Agreement and the other Basic
Documents, the Administrative Agent may, with the prior consent of the
Majority Lenders (but not otherwise), consent to any modification, supplement
or waiver under any of the other Basic Documents.
11.10 COLLATERAL SUB-AGENTS. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Security Agreement, that, in the event it shall hold any Permitted
Investments referred to therein, such Permitted Investments shall be held in
the name and under the control of such Lender, and such Lender shall hold
such Permitted Investments as a collateral sub-agent for the Administrative
Agent thereunder. Borrower by its execution and delivery of this Agreement
hereby consents to the foregoing.
11.11 EXCULPATORY PROVISIONS. None of the Administrative Agent,
the Arranger or any of their respective officers, directors, employees,
representatives, agents, attorneys-in-
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fact or Affiliates shall be (i) liable to any Lender for any waiver, consent
or approval given or any action taken or omitted to be taken by such Person
under or in connection with any Basic Document or be responsible for the
consequences of any oversight or error in judgment by such Person whatsoever,
except to the extent that such action, omission, oversight or error in
judgment is determined by a court of competent jurisdiction in a final
non-appealable judgment to have resulted solely from such Person's own gross
negligence or bad faith or (ii) responsible in any manner to any Lender for
the effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any Basic Document or for any representations, warranties,
recitals or statements made therein or made in any written or oral statement
or in any financial or other statements, instruments, reports, certificates
or any other documents in connection therewith furnished or made by the
Administrative Agent or the Arranger to the Lenders or by or on behalf of any
Obligor or any of their respective officers to any Creditor.
Section 12. MISCELLANEOUS.
12.01 WAIVER. No failure on the part of any Creditor to exercise
and no delay in exercising, and no course of dealing with respect to, any
right, power or privilege under any Basic Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under any Basic Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies
provided herein are cumulative and not exclusive of any remedies provided by
law.
12.02 NOTICES. All notices, requests and other communications
provided for herein and under the Security Documents (including any
modifications of, or waivers, requests or consents under, this Agreement)
shall be given or made in writing (including by facsimile) delivered to the
intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof; or, as to any party, at such other address as
shall be designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed
to have been duly given when transmitted by facsimile or personally delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as aforesaid.
12.03 EXPENSES, ETC. The Obligors, jointly and severally, agree:
(a) to pay or reimburse the Arranger and the Administrative Agent for all of
their reasonable out-of-pocket costs and expenses (including the reasonable
fees and expenses of legal counsel) in connection with (i) the negotiation,
preparation, execution and delivery of the Basic Documents and the extension
of credit hereunder and (ii) the negotiation or preparation of any
modification, supplement or waiver of any of the terms of any Basic Document
(whether or not consummated or effective); (b) to pay or reimburse each of
the Lenders and the Administrative Agent for all reasonable out-of-pocket
costs and expenses of the Lenders and the Administrative Agent (including the
reasonable fees and expenses of legal counsel) in connection with (i) any
Default and any enforcement or collection proceedings resulting therefrom,
including all manner of participation in or other involvement with (x)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, (y) judicial or regulatory proceedings and (z) workout,
restructuring or other negotiations or proceedings
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(whether or not the workout, restructuring or transaction contemplated
thereby is consummated) and (ii) the enforcement of this Section 12.03; and
(c) to pay or reimburse each of the Lenders and the Administrative Agent for
all costs, expenses, taxes (except for Oklahoma mortgage recording tax),
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated
by any Basic Document or any other document referred to therein.
The Obligors, jointly and severally, hereby agree to indemnify each
Creditor and their respective Affiliates, directors, trustees, officers,
employees and agents (each, an "INDEMNITEE") from, and hold each of them
harmless against, and that no Indemnitee will have any liability for, any and
all Losses incurred by any of them (including any and all Losses incurred by
the Administrative Agent, the Arranger or the Issuing Lender to any Lender,
whether or not any Creditor is a party thereto) directly or indirectly
arising out of or by reason of or relating to the negotiation, execution,
delivery, performance, administration or enforcement of any Basic Document,
any of the transactions contemplated by the Basic Documents, any breach by
any Obligor of any representation, warranty, covenant or other agreement
contained in any of the Basic Documents, the use or proposed use of any of
the Loans or Letters of Credit or the use of any collateral security for the
Loans (including the exercise by any Creditor of the rights and remedies or
any power of attorney with respect thereto and any action or inaction in
respect thereof), but excluding any such Losses to the extent finally
determined to have arisen from the gross negligence or bad faith of the
Indemnitee. Without limiting the generality of the foregoing, the Obligors,
jointly and severally, will indemnify each Creditor and each other Indemnitee
from, and hold each Creditor and each other Indemnitee harmless against, any
Losses described in the preceding sentence arising under any Environmental
Law as a result of (A) the past, present or future operations of Borrower or
any Subsidiary (or any predecessor in interest to Borrower or any
Subsidiary), (B) the past, present or future condition of any site or
facility owned, operated or leased at any time by Borrower or any Subsidiary
(or any such predecessor in interest), or (C) any Release or threatened
Release of any Hazardous Materials at or from any such site or facility,
including any such Release or threatened Release that shall occur during any
period when any Creditor shall be in possession of any such site or facility
following the exercise by such Creditor of any of its rights and remedies
hereunder or under any of the Security Documents; PROVIDED, HOWEVER, that the
indemnity hereunder shall be subject to the exclusions from indemnification
set forth in the preceding sentence. In case any action is brought against
any Indemnitee relating to Losses arising under any Environmental Law as
contemplated by the preceding sentence, Borrower will be entitled to
participate therein and, to the extent that it may wish, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnitee;
PROVIDED, HOWEVER, that if (i) the use of counsel chosen by Borrower to
represent the Indemnitee would present such counsel with a conflict of
interest, (ii) the defendants in any such action include both the Indemnitee
and any Obligor and the Indemnitee shall have been advised by counsel that
there may be one or more legal defenses available to it and/or other
Indemnitees that are different from or additional to those available to any
Obligor, or (iii) Borrower shall not have employed counsel reasonably
satisfactory to the Indemnitee to represent the Indemnitee within a
reasonable time after receipt by the Obligors of notice of the institution of
such action, then, in each such case,
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Borrower shall not have the right to assume the defense of such action on
behalf of such Indemnitee and such Indemnitee shall have the right to select
separate counsel to defend such action on behalf of such Indemnitee at the
expense of Borrower.
To the extent that the undertaking to indemnify and hold harmless
set forth in this Section 12.03 or any other provision of any Basic Document
providing for indemnification is unenforceable because it is violative of any
law or public policy or otherwise, the Obligors, jointly and severally, shall
contribute the maximum portion that each of them is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all
indemnified liabilities incurred by any of the Persons indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses
to any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to
in any indemnification or expense reimbursement provisions set forth in this
Agreement or any other Basic Document, except to the extent that any Loss is
determined by a court of competent jurisdiction in a final nonappealable
judgment to have resulted from the gross negligence or bad faith of such
Indemnitee.
The Obligors agree that, without the prior written consent of the
Administrative Agent, the Arranger and the Majority Lenders, no Obligor will
settle, compromise or consent to the entry of any judgment in any pending or
threatened Proceeding in respect of which indemnification is reasonably
likely to be sought under the indemnification provisions of this Section
12.03 (whether or not any Indemnitee is an actual or potential party to such
Proceeding), unless such settlement, compromise or consent includes an
unconditional written release of each Indemnitee from all liability arising
out of such Proceeding and does not include any statement as to an admission
of fault, culpability or failure to act by or on behalf of any Indemnitee and
does not involve any payment of money or other value by any Indemnitee or any
injunctive relief or factual findings or stipulations binding on any
Indemnitee.
12.04 AMENDMENTS, ETC. Any provision of this Agreement or any
other Basic Document may be amended, modified or supplemented by an
instrument in writing signed by the Obligors and the Majority Lenders, or by
the Obligors and the Administrative Agent acting with the consent of the
Majority Lenders, and, at the request of Borrower, any provision of this
Agreement may be waived by the Majority Lenders or by the Administrative
Agent acting with the consent of the Majority Lenders; PROVIDED, HOWEVER,
that: (a) no modification, supplement or waiver shall, unless by an
instrument signed by all of the Lenders or by the Administrative Agent acting
with the consent of all of the Lenders: (i) increase or extend the final
maturity of any of the Commitments (it being understood that any waiver or
modification of any condition precedent, covenant, Event of Default or
Default shall not constitute a change in the terms of any Commitment of any
Lender) or extend the time or waive any requirement for the reduction or
termination of any of the Commitments, (ii) extend the date fixed for any
Amortization Payment or the scheduled payment of interest on any Loan, the
Reimbursement Obligations or any fee hereunder, (iii) reduce the amount
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of any such Amortization Payment or any interest payment or fee, (iv) reduce
the rate at which interest is payable on any Loan or other Obligation (other
than as a result of waiving the applicability of any post-default increase in
interest rates) or any fee is payable hereunder, (v) amend the terms of this
Section 12.04 or Section 4.07, 5 or 11.09, (vi) amend the definition of the
term "Majority Lenders", "Majority Revolving Credit Lenders" or "Majority
Term Lenders", or modify in any other manner the number or percentage of the
Lenders required to make any determinations or waive any rights hereunder or
to modify any provision hereof, (vii) release any Subsidiary Guarantor from
its obligations under Section 6 (unless permitted by this Agreement), (viii)
amend any provision of any Basic Document requiring the consent of all
Lenders, (ix) consent to the assignment or transfer by any Obligor of any of
its rights and obligations under any Basic Document, (x) release all or
substantially all the Collateral or terminate the Lien under any Basic
Document in respect of all or substantially all the Collateral (except as
permitted by the Basic Documents) or agree to additional obligations (other
than the Obligations) being secured by the Collateral or (xi) amend Section
12.03 or any other indemnification and expense reimbursement provision set
forth in any Basic Document; (b) any modification or supplement of or waiver
with respect to Section 11 which affects the Administrative Agent or the
Arranger in their respective capacities as such shall require the consent of
the Administrative Agent and the Arranger; and (c) no consent of any Lender
need be obtained, and the Administrative Agent is hereby authorized, to
release any Lien securing the Obligations on Property which is the subject of
any Disposition permitted by this Agreement and the other Basic Documents.
12.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
12.06 ASSIGNMENTS AND PARTICIPATIONS. (a) No Obligor may assign
its respective rights or obligations hereunder or under the Notes without the
prior consent of all of the Lenders.
(b) Each Lender may assign to any Eligible Person any of its Loans,
its Notes, its Letter of Credit Interests and its Commitments (but only
with the consent (which shall not be unreasonably withheld or delayed) of
Borrower and the Administrative Agent and, in the case of the Revolving
Credit Commitments, the Issuing Lender); PROVIDED, HOWEVER, that (i) no
such consent by Borrower, the Issuing Lender or the Administrative Agent
shall be required in the case of any assignment to another Lender or to
any Lender's Affiliate (in which case, the assignee and assignor Lenders
shall give notice of the assignment to the Administrative Agent) and no
consent of Borrower need be obtained if any Default or Event of Default
shall have occurred and be continuing; (ii) except with respect to any
assignment pursuant to Section 5.07, any such assignment (other than to
a Lender or any Lender's Affiliate) shall be in an aggregate amount at
least equal to $5.0 million (unless Borrower and the Administrative Agent
otherwise agree) (or, if less, the full amount of such assigning Lender's
Term Loans, Revolving Credit Loans, Letter of Credit Interests, Term Loan
Commitments and Revolving Credit Commitments); (iii) each such assignment
by a Lender of its Revolving Credit Loans, Revolving Credit Note, Letter
of Credit Interests or
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Revolving Credit Commitment shall be made in such manner so that the same
portion of its Revolving Credit Loans, Revolving Credit Note, Letter of
Credit Interests and Revolving Credit Commitment is assigned to the
respective assignee; and (iv) in no event may any such assignment be made
to any Obligor or any of its Affiliates. Upon execution and delivery by
the assignee to Borrower and the Administrative Agent of an instrument in
writing substantially in the form of EXHIBIT F, and upon consent thereto by
Borrower, the Administrative Agent and the Issuing Lender to the extent
required above, the assignee shall have, to the extent of such assignment
(unless otherwise provided in such assignment with the consent of the
Administrative Agent), the obligations, rights and benefits of a Lender
hereunder holding the Commitment(s), Loans (or portions thereof) and Letter
of Credit Interests assigned to it (in addition to the Commitment(s),
Letter of Credit Interests and Loans, if any, theretofore held by such
assignee) and the assigning Lender shall, to the extent of such assignment,
be released from the Commitment(s) (or portion(s) thereof) so assigned. At
the time of each assignment pursuant to this Section 12.06(b) to a Person
which is not already a Lender hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(3) of the Code) for
Federal income tax purposes, the respective assignee Lender shall provide
to Borrower and the Administrative Agent the appropriate Internal Revenue
Service Forms (and, if applicable, a Section 5.06 Certificate) described in
Section 5.06(b). Upon any such assignment the assignee Lender shall pay a
fee of $3,500 to the Administrative Agent.
(c) A Lender may sell or agree to sell to one or more other Eligible
Persons a participation in all or any part of any Loans and Letter of
Credit Interests held by it, or in its Commitments, in which event each
purchaser of a participation (a "PARTICIPANT") shall be entitled to the
rights and benefits of the provisions of Section 5 (PROVIDED, HOWEVER, that
no Participant shall be entitled to receive any greater amount pursuant to
Section 5 than the transferor Lender would have been entitled to receive in
respect of the participation effected by such transferor Lender had no
participation occurred) with respect to its participation in such Loans,
Letter of Credit Interests and Commitments as if such Participant were a
"Lender" for purposes of said Section, but, except as otherwise provided in
Section 4.07(c), shall not have any other rights or benefits under this
Agreement or any Note or any other Basic Document (the Participant's rights
against such Lender in respect of such participation to be those set forth
in the agreements executed by such Lender in favor of the Participant).
All amounts payable by Borrower to any Lender under Section 5 in respect of
Loans, Letter of Credit Interests and its Commitments, shall be determined
as if such Lender had not sold or agreed to sell any participation in such
Loans, Letter of Credit Interests and Commitments, and as if such Lender
were funding each of such Loans, Letter of Credit Interests and Commitments
in the same way that it is funding the portion of such Loan, Letter of
Credit Interests and Commitments in which no participations have been sold.
In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder or under
any other Basic Document, except that such Lender may agree with the
Participant that it will not, without the consent of the Participant, agree
to (i) increase or extend the final
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maturity, or extend the time or waive any requirement for the reduction or
termination, of such Lender's related Commitment (it being understood that
no Lender shall agree that a waiver of any condition precedent, covenant or
Event of Default or Default requires such consent), (ii) extend the date
fixed for any Amortization Payment or interest on the related Loan or Loans
or Reimbursement Obligations or any portion of any fee hereunder payable to
the Participant (through the subject Lender), (iii) reduce the amount of
any such Amortization Payment, (iv) reduce the rate at which interest is
payable thereon (other than as a result of waiving applicability of any
post-default increase in interest rates), or any fee hereunder payable to
the Participant (through the subject Lender), to a level below the rate at
which the Participant is entitled to receive such interest or fee, (v)
release any Subsidiary Guarantor from its obligations under Section 6
(unless permitted by this Agreement), or (vi) release all or substantially
all of the collateral securing the Obligations (except as permitted by the
Basic Documents).
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may assign and
pledge all or any portion of its Loans and its Notes to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall
release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning Borrower or any
Subsidiary in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants)
subject, however, to the provisions of Section 12.11. In addition, each
of the Administrative Agent and the Arranger may furnish any information
concerning any Obligor or any of its Affiliates in the Administrative
Agent's or the Arranger's possession to any Affiliate of the Administrative
Agent or the Arranger. The Obligors shall assist any Lender in effectuating
any assignment or participation pursuant to this Section 12.06 (including
during syndication) in whatever manner such Lender reasonably deems
necessary, including the participation in meetings with prospective
transferees.
(f) Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or
Reimbursement Obligation or Commitment held by it hereunder to any Obligor
or any of its Affiliates or Subsidiaries without the prior written consent
of each Lender.
12.07 SURVIVAL. The obligations of the Obligors under Sections 5.01,
5.05, 5.06, 5.06 and 12.03, the obligations of each Subsidiary Guarantor under
Section 6.03, and the obligations of the Lenders under Sections 5.06 and 11.05,
shall survive the repayment of the Loans and Reimbursement Obligations and the
termination of the Commitments and, in the case of any Lender that may assign
any interest in its Commitments, Loans or Letter of Credit Interest hereunder,
shall (to the extent relating to such time as it was a Lender) survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a
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"Lender" hereunder. In addition, each representation and warranty made, or
deemed to be made by a notice of any extension of credit, herein or pursuant
hereto shall survive the execution and delivery of this Agreement and the
Notes and the making of any extension of credit hereunder.
12.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference
and are not intended to affect the interpretation of any provision of this
Agreement.
12.09 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
12.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS; ETC.
(a) Each Basic Document shall be governed by, and construed in
accordance with, the law of the State of New York, without regard to the
principles of conflicts of laws thereof (except in the case of the other
Basic Documents, to the extent otherwise expressly stated therein). Each
Obligor hereby irrevocably and unconditionally: (a) submits for itself and
its property in any Proceeding relating to any Basic Document to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof; (b)
consents that any such Proceeding may be brought in such courts and waives
trial by jury and any objection that it may now or hereafter have to the
venue of any such Proceeding in any such court or that such Proceeding was
brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such Proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to Borrower at its
address set forth in Section 12.02 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto; and (d)
agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to
sue in any other jurisdiction.
(b) Each Obligor hereby irrevocably appoints and designates CT
Corporation System, whose address is 1633 Broadway, New York, New York
10019, as its true and lawful attorney and duly authorized agent for
service of legal process of such Obligor.
12.11 CONFIDENTIALITY. Each Creditor agrees to take normal and
reasonable precautions to maintain the confidentiality of information
designated in writing as confidential and provided to it by Borrower or any
Subsidiary in connection with this Agreement; PROVIDED, HOWEVER, that any
Creditor may disclose such information (a) at the request of any bank
regulatory authority or the NAIC or in connection with an examination of
<PAGE>
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such Creditor by any such authority or the NAIC, (b) pursuant to subpoena or
other court process, (c) when required to do so in accordance with the
provisions of any applicable law, (d) at the discretion of any other
Governmental Authority, (e) to such Creditor's Affiliates, independent
auditors and other professional advisors or (f) to any transferee or
potential transferee; PROVIDED, HOWEVER, that such transferee agrees to
comply with the provisions of this Section 12.11.
12.12 INDEPENDENCE OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
The representations, warranties and covenants contained herein shall be
independent of each other and no exception to any representation, warranty or
covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall
any such exception be deemed to permit any action or omission that would be
in contravention of applicable law.
12.13 SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement.
12.14 PRIOR UNDERSTANDINGS. This Agreement and the other Basic
Documents supersede all prior and contemporaneous understandings and
agreements, whether written or oral, among the parties hereto relating to the
transactions provided for herein and therein, except that the following shall
continue to remain in effect: (a) the Commitment Letter (other than (1) the
Term Sheet (as defined in the Commitment Letter) and (2) the commitment of
Merrill Lynch Capital Corporation thereunder), (b) the Fee Letter and (c) the
Administrative Agent's Fee Letter.
12.15 ACKNOWLEDGEMENTS. The Obligors hereby acknowledge that:
(a) each of them has been advised by counsel in connection with the
negotiation, execution and delivery of the Basic Documents; (b) no Creditor
has any fiduciary or similar relationships to any Obligor and the
relationship between the Creditors on the one hand, and the Obligors, on the
other hand, is solely that of debtor and creditor; and (c) no joint venture
exists among the Creditors or among the Obligors and the Creditors.
[Signature Pages Follow]
<PAGE>
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
IMCO RECYCLING INC.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
5215 North O'Connor Blvd.
Suite 940
<PAGE>
S-2
Irving, TX 75039
Attention:
Telecopier No.:
Telephone No.:
IMCO INVESTMENT COMPANY
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
IMCO MANAGEMENT PARTNERSHIP L.P.
By IMCO Recycling Inc., its General
Partner
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
<PAGE>
S-3
Telephone No.: See SCHEDULE 8.14
IMCO ENERGY CORP.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
IMCO RECYCLING OF INDIANA INC.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
IMCO INDIANA PARTNERSHIP L.P.
By IMCO Energy Corp., its General
Partner
<PAGE>
S-4
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
PHOENIX SMELTING CORPORATION
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
IMCO RECYCLING OF ILLINOIS INC.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
<PAGE>
S-5
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
IMCO RECYCLING OF LOUDON INC.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
METAL MARK, INC.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
PITTSBURG ALUMINUM, INC.
<PAGE>
S-6
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
INTERAMERICAN ZINC, INC.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
IMCO RECYCLING OF CALIFORNIA, INC.
By: /s/ JAMES B. WALBURG
-----------------------------------
Name: James B. Walburg
Title: Vice President
Address for Notices:
See SCHEDULE 8.14
Attention: See SCHEDULE 8.14
<PAGE>
S-7
Telecopier No.: See SCHEDULE 8.14
Telephone No.: See SCHEDULE 8.14
<PAGE>
SECURITY AGREEMENT
SECURITY AGREEMENT ("AGREEMENT") dated as of January 21, 1997 among
IMCO RECYCLING INC., a Delaware corporation ("BORROWER"); EACH OF THE
SUBSIDIARIES party hereto (the "SUBSIDIARY GUARANTORS"); and TEXAS COMMERCE
BANK NATIONAL ASSOCIATION, as administrative agent for the lenders or other
financial institutions or entities party, as lenders, to the Credit Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "ADMINISTRATIVE AGENT").
Borrower, the Subsidiary Guarantors, certain lenders, Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Arranger and
Syndication Agent, and the Administrative Agent are parties to a Credit
Agreement dated as of the date hereof (as modified and supplemented and in
effect from time to time, the "CREDIT AGREEMENT"), providing, subject to the
terms and conditions thereof, for extensions of credit (by the making of loans
and the issuance of letters of credit) to be made by said lenders to Borrower.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Debtor (as
hereinafter defined) has agreed to pledge, mortgage and grant a security
interest in the Pledged Collateral (as hereinafter defined) as security for the
Secured Obligations (as hereinafter defined). Accordingly, the parties hereto
agree as follows:
Section 1. DEFINITIONS. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"ACCOUNTS" see Section 3(a)(vi) hereof.
"AGREEMENT" see the introduction hereto.
"COLLATERAL ACCOUNT" see Section 4.01(a) hereof.
"CONTRACTS" shall mean all contracts, undertakings, or other
agreements, including, without limitation, the IMSAMET Acquisition Documents, as
the same may be amended from time to time, and (a) all rights of any Debtor to
receive moneys due and to become due thereunder or in connection therewith, (b)
all rights of any Debtor to damages arising out of or for breach or default in
respect thereof and (c) all rights of any Debtor to exercise remedies
thereunder.
"COPYRIGHT COLLATERAL" shall mean all Copyrights, whether now owned or
hereafter acquired by any Debtor, including each Copyright identified in ANNEX 2
hereto.
"COPYRIGHTS" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation, all
renewals and extensions thereof, the right to recover for all past, present and
future infringements
<PAGE>
thereof, and all other rights of any kind whatsoever accruing thereunder or
pertaining thereto.
"DEBTOR" shall mean each of Borrower and each Subsidiary Guarantor
(other than IMCO Recycling of Ohio Inc., a Subsidiary).
"DOCUMENTS" see Section 3(a)(xii) hereof.
"EQUIPMENT" see Section 3(a)(x) hereof.
"INSTRUMENTS" see Section 3(a)(vii) hereof.
"INTELLECTUAL PROPERTY" shall mean, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together with
(a) all inventions, processes, production methods, proprietary information,
know-how and trade secrets; (b) all licenses or user or other agreements granted
to any Debtor with respect to any of the foregoing, in each case whether now or
hereafter owned or used including, without limitation, the licenses or other
agreements with respect to the Copyright Collateral, the Patent Collateral or
the Trademark Collateral, listed in ANNEX 5 hereto; (c) all information,
customer lists, identification of suppliers, data, plans, blueprints,
specifications, designs, drawings, recorded knowledge, surveys, engineering
reports, test reports, manuals, materials standards, processing standards,
performance standards, catalogs, computer and automatic machinery software and
programs; (d) all field repair data, sales data and other information relating
to sales or service of products now or hereafter manufactured; (e) all
accounting information and all media in which or on which any information or
knowledge or data or records may be recorded or stored and all computer
programs used for the compilation or printout of such information, knowledge,
records or data; and (f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held by
any Debtor; and (g) all causes of action, claims and warranties now or hereafter
owned or acquired by the Debtors in respect of any of the items listed above.
"INTERESTS" shall mean, as to any Debtor (i) all right, title and
interest, now existing or hereafter acquired, of such Debtor in any LLC but not
any of its obligations from time to time as a member (unless the Administrative
Agent shall become a member as a result of its exercise of remedies herein) of
any LLC; (ii) any and all moneys due and to become due to such Debtor now or in
the future by way of a distribution made to such Debtor in its capacity as a
member of or an owner of any LLC; (iii) any other Property of any LLC to which
such Debtor now or in the future may be entitled in its capacity as a member of
or an owner of any LLC by way of distribution, return of capital or otherwise;
(iv) any other claim in respect of any LLC to which such Debtor now or in the
future may be entitled in its capacity as a member of or an owner of any LLC and
its Property, including any rights under any operating agreement or other
agreement governing or pertaining to such interests; (v) the certificates, if
any, representing all such rights and interests; (vi) all right of such Debtor
under each limited liability company or operating agreement of each LLC; and
(vii) to the extent not otherwise included, all proceeds of any of the
foregoing.
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<PAGE>
"INVENTORY" see Section 3(a)(viii) hereof.
"ISSUERS" shall mean, collectively, the respective corporations
identified beneath the names of the Debtors on ANNEX 1A hereto under the caption
"ISSUER," together with any corporation created or acquired after the date
hereof, the capital stock of which is required to be pledged hereunder pursuant
to this Agreement or the Credit Agreement.
"LLC" shall mean, collectively, the respective limited liability
companies identified beneath the name of the Debtors on ANNEX 1A hereto under
the caption "LLC", together with any limited liability company created or
acquired after the date hereof, the Interests in which is required to be pledged
hereunder pursuant to this Agreement or the Credit Agreement.
"MOTOR VEHICLES" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"PARTNERSHIP" shall mean, collectively, the respective partnerships
identified beneath the name of the Debtors on ANNEX 1A hereto under the caption
"PARTNERSHIP", together with any partnerships created or acquired after the date
hereof, the Partnership Interests in which is required to be pledged hereunder
pursuant to this Agreement or the Credit Agreement.
"PARTNERSHIP INTERESTS" shall mean, as to any Debtor (i) all right,
title and interest, now existing or hereafter acquired, of such Debtor in any
Partnership but not any of its obligations from time to time as a partner
(unless the Administrative Agent shall become a partner as a result of its
exercise of remedies herein) of any Partnership; (ii) any and all moneys due and
to become due to such Debtor now or in the future by way of a distribution made
to such Debtor in its capacity as a member of or an owner of any Partnership;
(iii) any other Property of any Partnership to which such Debtor now or in the
future may be entitled in its capacity as a member of or an owner of any
Partnership by way of distribution, return of capital or otherwise; (iv) any
other claim in respect of any Partnership to which such Debtor now or in the
future may be entitled in its capacity as a member of or an owner of any
Partnership and its Property, including any rights under any partnership
agreement or other document governing or pertaining to such interests; (v) the
certificates, if any, representing all such rights and interests; (vi) all
rights of such Debtor under each partnership agreement or limited partnership
agreement of each Partnership; and (vii) to the extent not otherwise included,
all proceeds of any of the foregoing.
"PATENT COLLATERAL" shall mean all Patents, whether now owned or
hereafter acquired by any Debtor, including each Patent identified in ANNEX 3
hereto, excluding, however, the Patents identified as "Excluded Patents" on said
ANNEX 3.
"PATENTS" shall mean all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable
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<PAGE>
under and with respect thereto, including, without limitation, damages and
payments for past or future infringements thereof, the right to sue for past,
present and future infringements thereof, and all rights corresponding
thereto throughout the world.
"PLEDGED COLLATERAL" see Section 3 hereof.
"PLEDGED INTERESTS" see Section 3(a)(iv) hereof.
"PLEDGED OBLIGATIONS" shall mean all of each Debtor's right, title and
interest, if any, in and to any and all obligations owed to such Debtor by any
Person, whether now existing or hereafter incurred, and in and to all collateral
granted to such Debtor or for the benefit of such Debtor as collateral security
for such obligations.
"PLEDGED SECURITIES" shall mean thereunder Pledged Interests and the
Pledged Stock, collectively.
"PLEDGED STOCK" see Section 3(a)(i) hereof.
"SECURED OBLIGATIONS" shall mean, collectively, (a) the principal of
and interest (including any interest that would accrue but for the provisions of
the Bankruptcy Code) on the Loans made by the Lenders to, and the Notes held by
each Lender of, Borrower and all other amounts from time to time owing to the
Creditors by Borrower under the Basic Documents including, without limitation,
all Reimbursement Obligations and interest thereon, (b) all obligations of
Borrower arising under any Swap Contract between Borrower and any Lender, (c)
all obligations of the Subsidiary Guarantors under the Credit Agreement and the
other Basic Documents (including, without limitation, in respect of their
Guarantees under Section 6 of the Credit Agreement) and (d) all obligations of
the Debtors to the Creditors hereunder.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"STOCK AND INTERESTS COLLATERAL" shall mean, collectively, the Pledged
Collateral described in clauses (i) through (iv) of Section 3(a) hereof and the
proceeds of and to any such property and, to the extent related to any such
property or such proceeds, all books, correspondence, credit files, records,
invoices and other papers.
"TRADEMARK COLLATERAL" shall mean all Trademarks, whether now owned or
hereafter acquired by any Debtor, including each Trademark identified in ANNEX 4
hereto. Notwithstanding the foregoing, the Trademark Collateral does not and
shall not include any Trademark that would be rendered invalid, abandoned, void
or unenforceable by reason of its being included as part of the Trademark
Collateral.
"TRADEMARKS" shall mean all trade names, trademarks and service marks,
logos, trademark and service mark registrations, and applications for trademark
and service mark registrations, including, without limitation, all renewals of
trademark and service mark registrations, all rights corresponding thereto
throughout the world, the right to recover for all past, present and future
infringements thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case,
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<PAGE>
with the product lines and goodwill of the business connected with the use
of, and symbolized by, each such trade name, trademark and service mark.
"UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code as in
effect from time to time in the State of New York.
"VOTING POWERS" see Section 5.04(a)(2).
Section 2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each Debtor
represents and warrants to and covenants and agrees with the Creditors that:
(a) Such Debtor is the sole beneficial owner of the Pledged
Collateral (and, with respect to the Pledged Securities, sole record owner
thereof) in which it purports to grant a security interest pursuant to
Section 3 hereof and no Lien exists or will exist upon such Pledged
Collateral at any time (and no right or option to acquire the same exists
in favor of any other Person), except for the pledge and security interest
in favor of the Administrative Agent for the benefit of the Lenders created
or provided for herein, which pledge and security interest shall constitute
a first priority perfected pledge and security interest in and to all of
such Pledged Collateral and each Debtor will make no assignment, pledge,
hypothecation or transfer of, or create or permit to exist any security
interest in or other Lien on, the Pledged Collateral, other than pursuant
hereto; and, subject to Section 5.04 hereof, will cause any and all Pledged
Securities, to the extent certificated, whether for value paid by any
Debtor or otherwise, to be forthwith deposited with the Administrative
Agent and pledged or assigned hereunder.
(b) The Pledged Stock represented by the certificates identified
under the name of such Debtor in ANNEX 1A hereto is, and all other Pledged
Stock in which such Debtor shall hereafter grant a security interest
pursuant to Section 3 hereof will be, duly authorized, validly existing,
fully paid and non-assessable and none of such Pledged Stock is or will be
subject to any contractual restriction, or any restriction under the
charter or by-laws of the respective Issuer of such Pledged Stock, upon the
transfer of such Pledged Stock (except for any such restriction contained
herein or in the Credit Agreement or as permitted by the Credit Agreement).
(c) The Pledged Stock represented by the certificates identified
under the name of such Debtor in ANNEX 1A hereto constitutes (x) with
respect to each Subsidiary other than a Foreign Subsidiary all of the
issued and outstanding shares of capital stock of any class of such Issuers
beneficially owned by such Debtor and (y) with respect to each Foreign
Subsidiary, all of the issued and outstanding shares of capital stock of
any class of such Issuers beneficially owned by such Debtor which in the
aggregate do not represent more than 65% of the total combined voting power
of all classes of capital stock of any such Issuer (in each case, whether
or not registered in the name of such Debtor) and said ANNEX 1A correctly
identifies, as at the date hereof, or, with respect to any Issuer created
or acquired after the date hereof, as of the date of pledge hereunder, the
respective Issuers of such Pledged Stock, the respective class and par
value of the shares
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<PAGE>
comprising such Pledged Stock and the respective number of shares
(and registered owners thereof) represented by each such certificate.
(d) The Pledged Obligations identified on ANNEX 1B hereto constitute
all of the Pledged Obligations of such corporations as identified on
ANNEX 1B hereto, and, other than the Pledged Obligations, no Debtor owns,
directly or indirectly, any other Pledged Obligations of any Subsidiary
(other than a Foreign Subsidiary).
(e) ANNEXES 2, 3 AND 4 hereto, respectively, set forth under the name
of such Debtor a complete and correct list of all Copyrights, Patents and
Trademarks owned by such Debtor on the date hereof, which have been
registered or for which an application for registration has been made;
except pursuant to licenses and other user agreements entered into by such
Debtor in the ordinary course of business, that are listed in ANNEX 5
hereto, on and as of the date hereof (i) such Debtor owns and possesses the
right to use, and has done nothing to authorize or enable any other Person
to use, any Copyright, Patent or Trademark listed in said ANNEXES 2, 3 AND
4, and (ii) all registrations listed in said ANNEXES 2, 3 AND 4 are valid
and in full force and effect; and except as may be set forth in said
ANNEX 5, such Debtor owns and possesses the right to use all Copyrights,
Patents end Trademarks on and as of the date hereof.
(f) ANNEX 5 hereto sets forth a complete and correct list of all
material licenses and other user agreements included in the Intellectual
Property on the date hereof.
(g) To such Debtor's knowledge, on and as of the date hereof: (i)
except as set forth in ANNEX 5 hereto, there is no violation by others of
any right of such Debtor with respect to any Copyright, Patent or Trademark
listed in ANNEXES 2, 3 AND 4 hereto, respectively, under the name of such
Debtor and (ii) such Debtor is not infringing in any respect upon any
Copyright, Patent or Trademark of any other Person; and no proceedings have
been instituted or are pending against such Debtor or, to such Debtor's
knowledge, threatened, and no claim against such Debtor has been received
by such Debtor, alleging any such violation, except as may be set forth in
said ANNEX 5.
(h) Any goods now or hereafter produced by such Debtor or any of its
Subsidiaries included in the Pledged Collateral have been and will be
produced in compliance with the requirements of the Fair Labor Standards
Act of 1938, as amended, except where the failure to comply could not
reasonably be expected to have a Material Adverse Effect.
(i) The Interests of each Debtor identified under the name of such
Debtor on ANNEX 1A hereto pledged hereunder, and in respect of which a
security interest has been granted hereunder, constitute all of the issued
and outstanding Interests, limited liability company interests or other
ownership or equity interests in any LLC owned by the Debtors; the
Partnership Interests of each Debtor identified under the name of such
Debtor on ANNEX 1A hereto pledged hereunder, and in respect of which a
security interest has been granted hereunder, constitute
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<PAGE>
all of the issued and outstanding Partnership Interests or other ownership
or equity interests in any Partnership owned by the Debtors; and none of
the Pledged Interests is or will be subject to any contractual restriction,
or any restriction under the organizational or other organic documents of
the respective issuer of such Pledged Interests upon the transfer of such
Pledged Interests (except for any such restriction contained herein or in
the Credit Agreement or as permitted by the Credit Agreement). The Pledged
Interests have been duly authorized and validly issued, and all payments
required to be made by any holder of such Pledged Interests in respect of
such interests have been made.
(j) Each Debtor has the corporate power and authority to grant the
security interest in the Pledged Collateral pursuant to this Agreement and
has taken all necessary corporate action to grant the security interest in
the Pledged Collateral pursuant to this Agreement.
(k) None of the Pledged Stock constitutes margin stock, as defined in
Regulation U of the Board of Governors of the Federal Reserve System.
(l) No security agreement, financing statement, equivalent security
or lien instrument or continuation statement covering all or part of the
Pledged Collateral is on file or of record in any public office, except
such as may have been or will be filed in favor of the Administrative Agent
pursuant to this Agreement.
(m) Upon filing of the financing statements in the offices referred
to on SCHEDULE 1 hereto, the security interest created by this Agreement in
all Pledged Collateral other than the Pledged Securities will constitute a
valid, perfected first priority security interest in such Pledged
Collateral to the extent provided in the Uniform Commercial Code,
enforceable in accordance with its terms against all creditors of such
Debtor and any Persons purporting to purchase any such Pledged Collateral
from such Debtor, except as enforcement of such security interest may be
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law).
(n) The Interests in each LLC and the Partnership Interests in each
Partnership are not represented by certificates.
(o) Each Debtor's principal place of business, chief executive office
and the place where its records concerning the Pledged Collateral are kept
is at the address listed on SCHEDULE 2 hereto, and such Pledgor will not
change such principal place of business or chief executive office or remove
such records without giving the Administrative Agent at least 30 days prior
written notice thereof and taking such action to maintain the perfection or
priority of the Administrative Agent's security interest in the Pledged
Collateral as is necessary or reasonably requested by the Administrative
Agent; and such Debtor will not change its name, identity or structure in
any manner which might make any financing statement filed in
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<PAGE>
respect of the Pledged Collateral seriously misleading unless it shall have
given the Administrative Agent at least 30 days prior written notice
thereof.
(p) No consent or approval of any Governmental Authority or any
securities exchange or any other Person was or is necessary for the
validity of the security interest granted herein and the pledge effected
hereby.
(q) By virtue of the execution and delivery by the Debtors of this
Agreement, when the Pledged Securities, certificates, instruments or other
documents representing or evidencing such Pledged Securities are delivered
to the Administrative Agent in accordance with this Agreement, or, in the
case such Pledged Securities constituting uncertificated securities, when
the steps required by Articles 8 and 9 of the Uniform Commercial Code have
been taken to perfect the Administrative Agent's security interest therein,
the security interest created by this Agreement in the Pledged Securities
to the extent provided in the Uniform Commercial Code, enforceable in
accordance with its terms against all creditors of such Debtor and any
Person purporting to purchase any such Pledged Collateral from such Debtor,
except as enforcement of such security interest may be affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
in equity or at law).
(r) There are no restrictions upon the voting rights associated with,
or upon the transfer of, any of the Pledged Securities. The Pledged
Securities are not subject to any put, call, option or other right in favor
of any other Person whatsoever.
(s) Neither the execution and delivery of this Agreement by each
Debtor nor the consummation of the transactions herein contemplated nor the
fulfillment of the terms hereof (i) violates any Debtor's, or any of its
Subsidiaries', charter or by-laws or any organizational or other organic
document of any Issuer, LLC or Partnership, (ii) violates the terms of any
agreement, indenture, mortgage, deed of trust, equipment lease, instrument
or other document to which any Debtor, or any of its Subsidiaries, is a
party, or by which any of them may be bound or to which any of their
properties or assets may be subject, which violation or conflict would have
a Material Adverse Effect, or a material adverse effect on the value of the
Pledged Collateral or a material adverse effect on the security interests
hereunder, or (iii) conflicts with any law, order, rule or regulation
applicable to any Debtor, or any of its Subsidiaries, of any Governmental
Authority having jurisdiction over any Debtor, or any of its Subsidiaries,
or their Properties, or (iv) results in or requires the creation or
imposition of any Lien (other than the Lien contemplated hereby) upon or
with respect to any of the Property now owned or hereafter acquired by any
Debtor, or any of its Subsidiaries.
(t) Upon reasonable request to a Debtor, the Administrative Agent
shall have full and free access during normal business hours to all of the
books, correspondence and records of such Debtor relating to the Pledged
Collateral, and the Administrative Agent and its representatives may
examine the same, take
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extracts therefrom and make photocopies thereof, and such Debtor agrees to
render to the Administrative Agent, at such Debtor's cost and expense, such
clerical and other assistance as may be reasonably requested by the
Administrative Agent with regard thereto.
(u) In the event that the Administrative Agent desires to exercise
any remedies, voting or consensual rights or attorney-in-fact powers set
forth in this Agreement and determines it necessary to obtain any approvals
or consents of any Governmental Authority or any other Person therefor,
then, upon the reasonable request of the Administrative Agent, each Debtor
agrees to use its best efforts to assist and aid the Administrative Agent
to obtain as soon as practicable any necessary Approvals for the exercise
of any such remedies, rights and powers.
(v) There are no voting trusts or other agreements or understandings
to which any Debtor is a party or by which it may be bound with respect to
voting, managerial consent, election or other rights of any Debtor relating
to the Pledged Securities.
(w) Such Debtor is not in default in the payment of any portion of
any mandatory capital contribution, if any, required to be made under any
agreement to which such Debtor is a party relating to its Interests or
Partnership Interests, and such Debtor is not in violation of any other
material provisions of any such agreement to which such Debtor is a party,
or otherwise in default or violation thereunder; to the best knowledge of
the Debtors no Interest or Partnership Interest is subject to any defense,
offset or counterclaim, nor have any of the foregoing been asserted or
alleged against such Debtor by any Person with respect thereto and as of
the date hereof, there are no certificates, instruments, documents or other
writings (other than the operating agreements, partnership agreements and
certificates, if any, delivered to the Administrative Agent) which evidence
any Interest or Partnership Interest of such Debtor.
Section 3. PLEDGED COLLATERAL; REGISTRATION OF PLEDGE OF PLEDGED
INTERESTS; ACKNOWLEDGEMENTS; DELIVERY OF PLEDGED SECURITIES AND PLEDGED
OBLIGATIONS. (a) As collateral security for the prompt payment in full when
due (whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations owing by such Debtor, each Debtor hereby pledges and mortgages to
the Administrative Agent, for the benefit of the Creditors as hereinafter
provided, and grants to the Administrative Agent, for the benefit of the
Creditors as hereinafter provided, a security interest in, all of such Debtor's
right, title and interest in the following property, whether now owned by such
Debtor or hereafter acquired and whether now existing or hereafter coming into
existence (all being collectively referred to herein as "PLEDGED COLLATERAL"):
(i) the shares of common stock of the Issuers represented by the
certificates identified in ANNEX 1A hereto under the name of such Debtor
and each other corporation hereafter acquired or formed by any Debtor and
all other shares of capital stock of whatever class of the Issuers now or
hereafter owned by such Debtor and all Equity Rights of any such Issuer
owned by any Debtor (except for 49% of IMCO Recycling of Ohio Inc.), in
each case together with the certificates
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evidencing the same, subject, in the case of any Foreign Subsidiary, to the
limitation that shares of capital stock of any such Issuer which represent
in excess of 65% of the combined voting power of all classes of capital
stock of such Issuer shall not be pledged; PROVIDED, HOWEVER, that if
following a change in the relevant sections of the Code or the regulations,
rules, rulings, notices or other official pronouncements issued or
promulgated thereunder which would permit a pledge of 66-2/3% or more of the
total combined voting power of all classes of capital stock of any Foreign
Subsidiary entitled to vote without causing the undistributed earnings of
such Foreign Subsidiary as determined for Federal income taxes to be treated
as a deemed dividend to the Debtors for Federal income tax purposes, then
the 65% limitation set forth above shall no longer be applicable and the
Debtors shall duly pledge and deliver to the Administrative Agent such of
the capital stock not theretofore required to be pledged hereunder
(collectively, the "PLEDGED STOCK");
(ii) all shares, securities, moneys or Property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
(iii) all Pledged Obligations identified on ANNEX 1B hereto under the
name of any Debtor; PROVIDED, HOWEVER, if following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices
or other official pronouncements issued or promulgated thereunder which
would permit a pledge of any promissory note issued by any Foreign
Subsidiary without causing the undistributed earnings of such Foreign
Subsidiary as determined for Federal income taxes to be treated as a deemed
dividend to the Pledgor for Federal income tax purposes, then each Debtor
shall duly pledge and deliver to the Administrative Agent such of the
Pledged Obligations of each Foreign Subsidiary not theretofore required to
be pledged hereunder;
(iv) all Interests or Partnership Interests now or hereinafter owned
by any Debtor and any limited liability company interest, partnership
interest or other ownership or equity securities or certificate (including,
without limitation, any certificate representing a distribution in
connection with any reclassification, increase or reduction of capital or
any certificate issued in connection with any reorganization), option or
rights, whether in addition to, in substitution of, as a conversion of, or
in exchange for Interests or Partnership Interests, or otherwise in respect
thereof (collectively, the "PLEDGED INTERESTS");
(v) without affecting the obligations of such Debtor under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which an Issuer, LLC or
Partnership is not the surviving corporation, all shares of each class of
the capital stock of the successor corporation or interests or certificates
of the successor limited liability company or partnership owned by the
Debtors (unless such successor is such Debtor itself) formed by or
resulting from such consolidation or merger;
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(vi) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Debtor constituting any right to the
payment of money, including (but not limited to) all moneys due and to
become due to such Debtor in respect of any loans or advances or for
Inventory or Equipment or other goods sold or leased or for services
rendered, all moneys due and to become due to such Debtor under any
guarantee (including a letter of credit) of the purchase price of
Inventory or Equipment sold by such Debtor and all tax refunds (such
accounts, general intangibles and moneys due and to become due being herein
called collectively "ACCOUNTS");
(vii) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Debtor evidencing,
representing, arising from or existing in respect of, relating to, or
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of exchange
and trade acceptances (herein collectively called "INSTRUMENTS");
(viii) all inventory (as defined in the Uniform Commercial Code) of such
Debtor, all goods obtained by such Debtor in exchange for such inventory,
any products made or processed from such inventory including all
substances, if any, commingled therewith or added thereto, and any such
inventory as is temporarily out of such Debtor's custody or possession,
including inventory held by others on consignment, inventory on the
premises of others and items in transit (herein collectively called
"INVENTORY");
(ix) all Intellectual Property and all other accounts or general
intangibles (each as defined in the Uniform Commercial Code) not
constituting Intellectual Property or Accounts;
(x) all equipment (as defined in the Uniform Commercial Code) of such
Debtor, including all Motor Vehicles (herein collectively called
"EQUIPMENT");
(xi) all Contracts;
(xii) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Debtor covering, evidencing or representing
Inventory or Equipment (herein collectively called "DOCUMENTS");
(xiii) all rights, claims and benefits of such Debtor against any Person
arising out of, relating to or in connection with Inventory or Equipment
purchased by such Debtor, including, without limitation, any such rights,
claims or benefits against any Person storing or transporting such
Inventory or Equipment;
(xiv) the balance from time to time in the Collateral Account; and
(xv) all other tangible and intangible personal property and fixtures
of such Debtor, including, without limitation, all proceeds, products,
offspring, accessions, rents, profits, income, benefits, substitutions and
replacements of and
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to any of the property of such Debtor described in the preceding clauses of
this Section 3 (including, without limitation, any proceeds of insurance
thereon and all causes of action, claims and warranties now or hereafter
held by any Debtor in respect of any of the items listed above) and, to the
extent related to any property described in said clauses or such proceeds,
products and accessions, all books, correspondence, credit files, records,
invoices and other papers, including without limitation all tapes, cards,
computer runs and other papers and documents in the possession or under the
control of such Debtor or any computer bureau or service company from time
to time acting for such Debtor.
Notwithstanding the foregoing, the Pledged Collateral does not and shall not
include any contract to which any Debtor is a party which would be rendered void
or unenforceable by reason of its being included as part of the Pledged
Collateral or which is not assignable by its terms, unless a consent to the
assignment has been received by such Debtor and/or the Administrative Agent.
(b) Concurrently with the execution of this Agreement and with the
creation or acquisition of any securities or interests in any Issuer, LLC or
Partnership the securities or interests in which are required to be pledged
hereunder, each Debtor shall deliver to the Administrative Agent (i) an Initial
Transaction Statement in the form of EXHIBIT A hereto confirming that such
Debtor has registered the pledge of its Interests and Partnership Interests
effected by this Agreement on the books of each applicable LLC or Partnership in
which it has an Interest or a Partnership Interest and (ii) an Acknowledgement
in form of EXHIBIT B hereto of each Issuer, LLC or Partnership whose securities
or interests are Pledged Securities hereunder.
(c) Each Debtor hereby delivers to the Administrative Agent all of the
certificates evidencing the Pledged Stock owned by such Debtor which is
represented by certificates, endorsed in blank or accompanied with appropriate
undated stock powers executed in blank. Each Debtor has caused the Lien of the
Administrative Agent in and to the Pledged Stock to be registered upon the books
of the Issuers of the Pledged Stock. If at any time any Pledged Stock which is
not represented by a certificate as of the date of this Agreement shall be
represented by one or more certificates, then each Debtor shall promptly deliver
the same to the Administrative Agent accompanied by stock powers duly executed
in blank, with signature properly guaranteed. All other shares of Pledged Stock
subsequently acquired by each Debtor shall be pledged to the Administrative
Agent and if represented by a certificate, certificates representing the same
shall be delivered to the Administrative Agent contemporaneously with the
acquisition thereof, accompanied by stock powers duly executed in blank.
(d) Each Debtor has executed and delivered to the Administrative
Agent such financing statements as the Administrative Agent has requested, with
respect to that portion of the Pledged Collateral in which a Lien may be
perfected by the filing of a financing statement against such Debtor. Each
Debtor has caused the Lien of the Administrative Agent in and to the Interests
and the Partnership Interests to be registered upon the books of the issuers of
such Interests and Partnership Interests. If at any time any Interests or
Partnership Interests shall be represented by one or more certificates or by any
documents that are instruments (as defined in the Uniform Com-
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mercial Code), then the appropriate Obligor shall promptly deliver the same
to the Administrative Agent accompanied by duly executed transfer powers
endorsed in blank respecting such certificates or documents.
(e) Each Debtor hereby delivers to the Administrative Agent all of
the promissory notes, instruments and agreements evidencing the Pledged
Obligations held by such Debtor in suitable form for transfer by endorsement and
delivery or accompanied by duly executed instruments of transfer or assignment
in blank. If any Debtor shall become entitled to receive or shall receive any
promissory notes, instruments or agreements constituting Pledged Collateral
after the date hereof (including, without limitation, any certificate
representing any distribution in connection with any recapitalization,
reclassification or increase or reduction of capital, or issued in connection
with any reorganization of the obligor on any Pledged Obligations) in respect of
the Pledged Obligations, such Debtor agrees: (i) to accept the same as the
agent of the Administrative Agent, (ii) to hold the same in trust on behalf of
and for the benefit of the Administrative Agent, and (iii) to deliver any and
all promissory notes, instruments or agreements evidencing the same to the
Administrative Agent within ten (10) days following the receipt thereof by such
Debtor, in the exact form received, with the endorsement in blank of such Debtor
when necessary and with an appropriate undated instrument of transfer or
assignment duly executed in blank (with signature properly guaranteed), to be
held by the Administrative Agent subject to the terms of this Agreement, as
additional Pledged Collateral.
(f) Each delivery of such Pledged Securities or Pledged Obligations
after the date hereof shall be accompanied by a schedule describing the
securities and/or indebtedness theretofore and then being pledged hereunder,
which schedule shall be attached hereto and made a part hereof. Each schedule
so delivered shall supersede any prior schedules so delivered.
Section 4. CASH PROCEEDS OF COLLATERAL.
4.01 COLLATERAL ACCOUNT.
(a) There is hereby established with the Administrative Agent a cash
collateral account (the "COLLATERAL ACCOUNT") in the name and under the control
of the Administrative Agent (1) into which there shall be deposited from time to
time (i) the cash proceeds (including pursuant to any Disposition thereof) of
any of the Pledged Collateral, (ii) the cash proceeds of any Taking or
Destruction or loss of title with respect to any Real Property (including
proceeds of Casualty Events and proceeds of insurance covering the Pledged
Collateral or any Real Property) and (iii) any cash in respect of any Pledged
Collateral which the Administrative Agent is entitled to pursuant to Section
5.04 hereof and (2) into which the Debtors may from time to time deposit any
additional amounts that any of them wishes to pledge to the Administrative Agent
for the benefit of the Lenders as additional collateral security hereunder and
which, as provided in Section 10 of the Credit Agreement, it is required to
pledge as additional collateral security hereunder.
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(b) The balance from time to time in the Collateral Account shall
constitute part of the Pledged Collateral hereunder and shall not constitute
payment of the Secured Obligations until applied as hereinafter provided. So
long as no Event of Default has occurred and is continuing, the Administrative
Agent shall remit the collected balance outstanding to the credit of the
Collateral Account to or upon the order of the respective Debtor as such Debtor
shall from time to time instruct; PROVIDED, HOWEVER, that any amounts deposited
in the Collateral Account in respect of any Disposition effected pursuant to
Section 9.06(j) or (k) of the Credit Agreement or Casualty Events or Takings,
Destructions or loss of title with respect to Real Property shall be disbursed
to the relevant Debtor in periodic installments upon submission of reasonable
evidence that such amount is to be applied as permitted by Section 2.10(a) of
the Credit Agreement and (ii) any amounts deposited in the Collateral Account in
respect of prepayments or reductions of Loans or Commitments under Section 2.10
of the Credit Agreement which are to be applied to LIBOR Loans as provided in
the penultimate sentence of Section 2.10(b) of the Credit Agreement shall be
held by the Administrative Agent until the end of the respective Interest
Periods of such LIBOR Loans at which time, whether or not an Event of Default
has occurred, the Administrative Agent shall cause such monies to be applied to
such LIBOR Loans. However, at any time following the occurrence and during the
continuance of an Event of Default, the Administrative Agent may (and, if
instructed by the Lenders as specified in Section 11.03 of the Credit Agreement,
shall) in its (or their) discretion apply or cause to be applied (subject to
collection) the balance from time to time outstanding to the credit of the
Collateral Account to the payment of the Secured Obligations in the manner
specified in Section 5.09 hereof. The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided herein.
(c) If requested by the Company and agreed to by any Lender that is
an Original Lender, and subject to documentation reasonably satisfactory to the
Administrative Agent and such Lender, the Administrative Agent shall designate
such Lender as a collateral sub-agent for the Administrative Agent in respect of
all or any portion of the Collateral Account and provide written notice to the
Company of such designation.
4.02 PROCEEDS OF ACCOUNTS. At any time after the occurrence and
during the continuance of an Event of Default, each Debtor shall, upon the
request of the Administrative Agent, instruct all account debtors and other
Persons obligated in respect of all Accounts to make all payments in respect of
the Accounts either (a) directly to the Administrative Agent (by instructing
that such payments be remitted to a post office box which shall be in the name
and under the control of the Administrative Agent) or (b) to one or more other
banks in the United States of America (by instructing that such payments be
remitted to a post office box which shall be in the name and under the control
of the Administrative Agent) under arrangements, in form and substance
satisfactory to the Administrative Agent, pursuant to which such Debtor shall
have irrevocably instructed such other bank (and such other bank shall have
agreed) to remit all proceeds of such payments directly to the Administrative
Agent for deposit into the Collateral Account. All payments made to the
Administrative Agent, as provided in the preceding sentence, shall be
immediately deposited in the Collateral Account. In addition to the foregoing,
each Debtor agrees that, at any time after the occurrence and during the
continuance of an Event of Default if the proceeds of any Pledged Collateral
hereunder
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(including the payments made in respect of Accounts) shall be received by it,
such Debtor shall as promptly as possible deposit such proceeds into the
Collateral Account. Until so deposited, all such proceeds shall be held in
trust by such Debtor for and as the property of the Administrative Agent and
the Lenders and shall not be commingled with any other funds or property of
such Debtor.
4.03 INVESTMENT OF BALANCE IN COLLATERAL ACCOUNT. Amounts on deposit
in the Collateral Account shall be invested from time to time in such Permitted
Investments as the respective Debtor (or, after the occurrence and during the
continuance of a Default, the Administrative Agent) shall determine, which
Permitted Investments shall be held in the name and be under the control of the
Administrative Agent; PROVIDED, HOWEVER, that (i) at any time after the
occurrence and during the continuance of an Event of Default, the Administrative
Agent may (and, if instructed by the Lenders as specified in Section 11.03 of
the Credit Agreement, shall) in its (or their) discretion at any time and from
time to time elect to liquidate any such Permitted Investments and to apply or
cause to be applied the proceeds thereof to the payment of the Secured
Obligations in the manner specified in Section 5.09 hereof and (ii) if requested
by the respective Debtor, such Permitted Investments may be held in the name and
under the control of one or more of the Lenders (and in that connection each
Lender, pursuant to Section 11.10 of the Credit Agreement,) has agreed that such
Permitted Investments shall be held by such Lender as a collateral sub-agent for
the Administrative Agent hereunder).
4.04 COVER FOR LETTER OF CREDIT LIABILITIES. Amounts deposited into
the Collateral Account as cover for Letter of Credit Liabilities under the
Credit Agreement pursuant to Section 10 thereof shall be held by the
Administrative Agent in a separate sub-account (designated "Letter of Credit
Liabilities Sub-Account") and all amounts held in such sub-account shall
constitute collateral security FIRST for the Letter of Credit Liabilities
outstanding from time to time and SECOND as collateral security for the other
Secured Obligations hereunder, which funds shall be retained by the
Administrative Agent in the Collateral Account (as provided in this Agreement as
collateral security in the first instance for the Letter of Credit Liabilities)
until such time as all Letters of Credit shall have been terminated and all of
the Letter of Credit Liabilities paid in full.
Section 5. COVENANTS; FURTHER ASSURANCES; REMEDIES. In furtherance
of the grant of the pledge and security interest pursuant to Section 3 hereof,
the Debtors hereby jointly and severally agree with each Lender and the
Administrative Agent as follows:
5.01 DELIVERY AND OTHER PERFECTION. Each Debtor shall:
(a) if there shall be received by such Debtor any of the above-
described shares, securities or Property (other than cash unless required
by the terms hereof to be delivered hereunder) required to be pledged by
such Debtor under clauses (i), (ii), (iii), (iv) and (v) of Section 3(a)
hereof or any distribution of capital shall be made on or in respect of the
Pledged Interests or any Property shall be distributed upon or with respect
to the Pledged Interests pursuant to the recapitalization or
reclassification of the capital of any LLC or Partnership, or pursuant to
the reorganization thereof, forthwith either (x) transfer and deliver to
the Administrative Agent such shares, capital, Property or securities so
received by
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such Debtor (together with the certificates for any such shares and
securities duly endorsed in blank or accompanied by undated stock powers
duly executed in blank), all of which thereafter shall be held by the
Administrative Agent, pursuant to the terms of this Agreement, as part of
the Pledged Collateral or (y) take such other action as the Administrative
Agent shall deem necessary or appropriate to duly record the Lien created
hereunder in such shares, securities, capital or Property in said clauses
(i), (ii), (iii), (iv) and (v) and until such time of transfer hold such
shares, securities, money, property or capital shall be held in trust for
the sole benefit of the Lenders, segregated from of the other property of
each Debtor;
(b) deliver and pledge to the Administrative Agent any and all
Instruments, endorsed and/or accompanied by such instruments of assignment
and transfer in such form and substance as the Administrative Agent may
request; PROVIDED, HOWEVER, that so long as no Default shall have occurred
and be continuing, such Debtor may retain for collection in the ordinary
course any Instruments received by such Debtor in the ordinary course of
business and the Administrative Agent shall, promptly upon request of such
Debtor, make appropriate arrangements for making any other Instrument
pledged by such Debtor available to such Debtor for purposes of
presentation, collection or renewal (any such arrangement to be effected,
to the extent deemed appropriate by the Administrative Agent, against trust
receipt or like document);
(c) maintain the security interest created by this Agreement as a
first priority perfected security interest and shall defend such security
interest against claims and demands of all Persons whomsoever and give,
execute, deliver, file and/or record any financing statement, continuation
statement, notice, instrument, document, agreement or other papers that may
be necessary or desirable (in the judgment of the Administrative Agent) to
create, preserve, perfect or validate the security interest granted
pursuant hereto or to enable the Administrative Agent to exercise and
enforce its rights hereunder with respect to such pledge and security
interest (and each Debtor authorizes the Administrative Agent to file any
such financing or continuation statement without the signature of each
Debtor to the extent permitted by applicable law), including, without
limitation, after the occurrence and during the continuance of an Event of
Default, causing any or all of the Stock and Interests Collateral to be
transferred of record into the name of the Administrative Agent or its
nominee (and the Administrative Agent agrees that if any Stock and
Interests Collateral is transferred into its name or the name of its
nominee, the Administrative Agent will thereafter promptly give to the
respective Debtor copies of any notices and communications received by it
with respect to the Stock and Interests Collateral) and if any amount
payable under or in connection with any of the Interests or Partnership
Interests shall be or become evidenced by any instrument (including any
promissory note) or chattel paper (in each case as defined in the Uniform
Commercial Code), such instrument or chattel paper shall be immediately
delivered to the Administrative Agent, duly endorsed in a manner
satisfactory to the Administrative Agent, to be held as Pledged Collateral
pursuant to this Agreement;
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(d) keep full and accurate books and records relating to the Pledged
Collateral;
(e) furnish to the Administrative Agent upon its request statements
and schedules further identifying and describing the Copyright Collateral,
the Patent Collateral and the Trademark Collateral, respectively, and such
other reports in connection with the Copyright Collateral, the Patent
Collateral and the Trademark Collateral, as the Administrative Agent may
reasonably request, all in reasonable detail;
(f) promptly upon request of the Administrative Agent, following
receipt by the Administrative Agent of any statements, schedules or reports
pursuant to clause (e) above, modify this Agreement by amending ANNEXES 2,
3 AND/OR 4 hereto, as the case may be, to include any Copyright, Patent or
Trademark that becomes part of the Pledged Collateral under this Agreement;
(g) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Pledged
Collateral;
(h) upon the occurrence and during the continuance of any Event of
Default, permit representatives of the Administrative Agent to be present
at such Debtor's place of business to receive copies of all communications
and remittances relating to the Pledged Collateral, and forward copies of
any notices or communications received by such Debtor with respect to the
Pledged Collateral, all in such manner as the Administrative Agent may
require;
(i) upon the occurrence and during the continuance of any Event of
Default, upon request of the Administrative Agent, promptly notify (and
such Debtor hereby authorizes the Administrative Agent so to notify) each
account debtor in respect of any Accounts or Instruments that such Pledged
Collateral has been assigned to the Administrative Agent for the benefit of
the Lenders hereunder, and that any payments due or to become due in
respect of such Pledged Collateral are to be made directly to the
Administrative Agent; and
(j) pay, and save the Administrative Agent and the Lenders harmless
from, any and all liabilities with respect to, or resulting from any delay
in paying, any and all stamp, excise, sales or other similar taxes which
may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by
this Agreement.
5.02 OTHER FINANCING STATEMENTS AND LIENS. Without the prior written
consent of the Administrative Agent (granted with the authorization of the
Lenders as specified in Section 11.09 of the Credit Agreement), no Debtor shall
file or suffer to be on file, or authorize or permit to be filed or to be on
file, in any jurisdiction, any financing statement or like instrument with
respect to the Pledged Collateral in which the Administrative Agent is not named
as the sole secured party for the benefit of the Lenders.
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5.03 PRESERVATION OF RIGHTS. Regardless of whether or not there
shall have occurred any Event of Default, the Administrative Agent may institute
and maintain or cause in its name or in the name of the Debtors to be instituted
and maintained, such suits and proceedings as the Administrative Agent may be
advised by counsel shall be necessary or expedient to prevent any impairment of
the security interest in or perfection of the Pledged Collateral in
contravention of the terms of the Basic Documents. The Debtors agree not to
knowingly take or permit to be taken any action which would impair the Pledged
Collateral or the Administrative Agent's rights in the Pledged Collateral. The
Administrative Agent shall not be required to take steps necessary to preserve
any rights against prior parties to any of the Pledged Collateral.
5.04 SPECIAL PROVISIONS RELATING TO CERTAIN COLLATERAL.
(a) PLEDGED SECURITIES AND PLEDGED OBLIGATIONS.
(1) The Debtors will cause the Pledged Stock to constitute at all
times, with respect to (x) any Issuer other than a Foreign Subsidiary all of
shares of each class of capital stock of each such Issuer then owned by any
Debtor and (y) any Foreign Subsidiary, such amount of the shares of capital
stock of each such Issuer as will not (subject to Section 3(a)(i) hereof) result
in greater than 65% of the total combined voting power of all classes of capital
stock of any such Issuer.
(2) So long as no Event of Default shall have occurred and be
continuing, the Debtors shall have the right to exercise all voting, consensual,
partnership, managerial and membership rights and powers and other powers of
ownership pertaining to the Pledged Securities (collectively, the "VOTING
POWERS") for all purposes not inconsistent with the terms of this Agreement, the
other Basic Documents or any other instrument or agreement referred to herein or
therein; PROVIDED, HOWEVER, that each Debtor agrees that no vote shall be cast
or membership or partnership right exercised or other action taken which, in the
Administrative Agent's reasonable judgment, would materially impair the Pledged
Securities (other than pursuant to a transaction expressly permitted under the
Credit Agreement) or which would be inconsistent with or result in any violation
of any provision of any of this Agreement or any other Basic Document. The
Administrative Agent shall execute and deliver to the Debtors or cause to be
executed and delivered to the Debtors all such proxies, powers of attorney,
dividend and other orders, and all such instruments, without recourse, as the
Debtors may reasonably request for the purpose of enabling the Debtors to
exercise the Voting Powers that they are entitled to exercise pursuant to this
Section 5.04(a)(2). Upon the occurrence and during the continuance of an Event
of Default, at the Administrative Agent's option and following written notice
from the Administrative Agent to the Debtors (such written notice to be
effective immediately upon the giving thereof as provided below) all rights of
the Debtors to exercise the Voting Powers they are entitled to exercise pursuant
to this Section 5.04(a)(2), and the obligations of the Administrative Agent
under this Section 5.04(a)(2), shall cease, and all such Voting Powers shall
thereupon become vested in the Administrative Agent, which shall have the sole
and exclusive right and authority to exercise such Voting Powers, including,
without limitation, the right to act by shareholder, partner, member or other
interestholder consent. Such authorization shall
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constitute an irrevocable voting proxy from each Debtor to the Administrative
Agent or, at the Administrative Agent's option, to the Administrative Agent's
nominee.
(3) The Debtors shall be entitled to receive and retain any dividends
or distributions on the Pledged Securities to the extent that the payment of
such dividends is permitted by the Credit Agreement.
(4) If any Event of Default shall have occurred, then so long as such
Event of Default shall continue, and whether or not the Administrative Agent or
any Lender exercises any available right to declare any Secured Obligation due
and payable or seeks or pursues any other relief or remedy available to it under
applicable law or under this Agreement, the Credit Agreement, the Notes or any
other agreement relating to such Secured Obligation, all dividends and other
distributions on the Pledged Securities shall be paid directly to the
Administrative Agent and retained by it as part of the Pledged Collateral,
subject to the terms of this Agreement, and, if the Administrative Agent shall
so request in writing, the Debtors jointly and severally agree to execute and
deliver to the Administrative Agent appropriate additional dividend,
distribution and other orders and documents to that end; PROVIDED, HOWEVER, that
if such Event of Default is cured, any such dividend or distribution theretofore
paid to the Administrative Agent shall, upon request of the Debtors (except to
the extent theretofore applied to the Secured Obligations), be returned by the
Administrative Agent to the Debtors.
(5) So long as no Event of Default has occurred, and to the extent
not prohibited by the Credit Agreement, each Debtor shall be entitled to receive
and retain principal and interest payments, if any, paid on the Pledged
Obligations.
(6) Upon the occurrence and during the continuance of an Event of
Default, (i) all rights of each Debtor to receive or demand, as the case may be,
principal and interest payments which such Debtor is authorized to receive or
demand pursuant to Section 5.04(a)(5) shall cease, and all such rights shall
thereupon become vested in the Administrative Agent, which shall have the sole
and exclusive right and authority to receive or demand, as the case may be, and
retain such principal and interest payments (and all other payments in respect
of the Pledged Obligations); in addition, all principal and interest payments
(and all other payments in respect of the Pledged Obligations) which are
received by any Obligor contrary to the provisions of this Section 5.07(a)(6)
shall be received in trust for the benefit of the Administrative Agent, shall be
segregated from other property or funds of such Debtor and shall be forthwith
delivered to the Administrative Agent as Pledged Collateral in the same form as
so received (with any necessary endorsement) and (ii) all rights of each Debtor
to exercise any rights and powers (including the right to receive and retain
payments on the Pledged Obligations) which it would otherwise be entitled to
exercise pursuant to Section 5.04(a)(5) shall cease, and all such rights shall
thereupon become vested in the Administrative Agent, which shall have the sole
and exclusive right and authority to exercise all such rights and powers until
such Event of Default shall have been cured or waived in accordance with the
Credit Agreement, at which time all such rights shall thereupon become revested
in such Debtor. Any and all money and other Property paid over to or received
by the Administrative Agent as Pledged Collateral and retained by the
Administrative Agent pursuant to the provisions of this Section 5.04(a)(6) shall
be retained by the
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Administrative Agent in the Collateral Account upon receipt of money or other
property and shall be applied in accordance with the provisions of the Credit
Agreement. Upon the occurrence and during the continuance of an Event of
Default, each Debtor further agrees that so long as the Pledged Obligations
continue to be Collateral under this Agreement, such Debtor will not permit
any of the notes, instruments or other agreements evidencing the Pledged
Obligations to be amended, modified or changed in any way, nor will such
Obligor accept any waiver, indulgence, modification or other departure by any
obligor under such Pledged Obligations from any provision of the Pledged
Obligations, without first obtaining written consent of the Administrative
Agent.
(7) Each Debtor hereby represents and warrants that it has made its
own arrangements for keeping informed of changes or potential change affecting
the Pledged Securities and the Pledged Obligations (including, without
limitation, rights to convert, rights to subscribe, payment of dividends,
reorganization or other exchanges, tender offers and voting rights of the
Pledged Securities), and each Obligor agrees that the Administrative Agent shall
have no responsibility or liability for informing such Obligor of any such
changes or potential changes or for taking any action or omitting to take any
action with respect thereto.
(8) The Administrative Agent may, upon the occurrence and during the
continuation of an Event of Default, without notice and at its option, transfer
or register the Pledged Securities and the Pledged Obligations or any part
thereof, into its or its nominee's name, or endorse any of the Pledged
Obligations for negotiation, without any indication that such Pledged Collateral
is subject to the security interest hereunder.
(b) INTELLECTUAL PROPERTY.
(1) For the purpose of enabling the Administrative Agent, during the
continuance of an Event of Default, to exercise rights and remedies under
Section 5.05 hereof at such time as the Administrative Agent shall be lawfully
entitled to exercise such rights and remedies, and for no other purpose, each
Debtor hereby grants to the Administrative Agent, to the extent assignable, an
irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to such Debtor) to use, assign, license or sublicense any of
the Intellectual Property now owned or hereafter acquired by such Debtor,
wherever the same may be located, including in such license reasonable access to
all media in which any of the licensed items may be recorded or stored and to
all computer programs used for the compilation or printout thereof.
(2) Notwithstanding anything contained herein to the contrary, but
subject to the provisions of Section 9.06 of the Credit Agreement that limit the
right of the Debtors to dispose of their respective property, so long as no
Event of Default shall have occurred and be continuing, the Debtors will be
permitted to exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual Property in
the ordinary course of the business of the Debtors. In furtherance of the
foregoing, unless an Event of Default shall have occurred and be continuing the
Administrative Agent shall from time to time, upon the request of the respective
Debtor, execute and deliver any instruments, certificates or other documents, in
the form so requested, that such Debtor shall have certified are appropriate (in
its judgment) to allow
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it to take any action permitted above (including relinquishment of the
license provided pursuant to clause (1) immediately above as to any specific
Intellectual Property). Further, upon the payment in full of all of the
Secured Obligations and cancellation or termination of the Commitments and
Letter of Credit Liabilities or earlier expiration of this Agreement or
release of the Pledged Collateral, the Administrative Agent shall grant back
to the Debtors the license granted pursuant to clause (1) immediately above.
The exercise of rights and remedies under Section 5.05 hereof by the
Administrative Agent shall not terminate the rights of the holders of any
licenses or sublicenses theretofore granted by the Debtors in accordance with
the first sentence of this clause (2).
(c) MOTOR VEHICLES. At any time after the occurrence and during the
continuance of an Event of Default, each Debtor shall, upon the request of the
Administrative Agent, deliver to the Administrative Agent originals of the
certificates of title or ownership for the Motor Vehicles, and any other
Equipment covered by certificates of title or ownership, owned by it with the
Administrative Agent listed as lienholder.
5.05 EVENTS OF DEFAULT; REMEDIES; ETC. During the period during which
an Event of Default shall have occurred and be continuing:
(a) each Debtor shall, at the request of the Administrative Agent,
assemble the Pledged Collateral owned by it at such place or places,
reasonably convenient to both the Administrative Agent and such Debtor,
designated in its request;
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Pledged Collateral
and may extend the time of payment, arrange for payment in installments, or
otherwise modify the terms, of any of the Pledged Collateral;
(c) the Administrative Agent shall have all of the rights and
remedies with respect to the Pledged Collateral of a secured party under
the Uniform Commercial Code (whether or not the Uniform Commercial Code is
in effect in the jurisdiction where the rights and remedies are asserted)
and such additional rights and remedies to which a secured party is
entitled under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation, the
right, to the maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the Pledged
Collateral as if the Administrative Agent were the sole and absolute owner
thereof (and each Debtor agrees to take all such action as may be
appropriate to give effect to such right);
(d) the Administrative Agent in its discretion may, in its name or in
the name of the Debtors or otherwise, demand, sue for, collect or receive
any money or property at any time payable or receivable on account of or in
exchange for any of the Pledged Collateral, but shall be under no
obligation to do so; and
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(e) the Administrative Agent may, upon ten business days' prior
written notice to the Debtors of the time and place, with respect to the
Pledged Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the
Administrative Agent, the Lenders or any of their respective agents, sell,
lease, assign or otherwise dispose of all or any part of such Pledged
Collateral, at such place or places as the Administrative Agent deems best,
and for cash or for credit or for future delivery (without thereby assuming
any credit risk), at public or private sale, without demand of performance
or notice of intention to effect any such disposition or of the time or
place thereof (except such notice as is required above or by applicable
statute and cannot be waived), and the Administrative Agent or any Lender
or anyone else may be the purchaser, lessee, assignee or recipient of any
or all of the Pledged Collateral so disposed of at any public sale (or, to
the extent permitted by law, at any private sale) and thereafter hold the
same absolutely, free from any claim or right of whatsoever kind, including
any right or equity of redemption (statutory or otherwise), of the Debtors,
any such demand, notice and right or equity being hereby expressly waived
and released. In the event of any sale, assignment, or other disposition
of any of the Trademark Collateral, the goodwill connected with and
symbolized by the Trademark Collateral subject to such disposition shall be
included, and the Debtors shall supply to the Administrative Agent or its
designee, for inclusion in such sale, assignment or other disposition, all
Intellectual Property relating to such Trademark Collateral. The
Administrative Agent may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may
be made at any time or place to which the sale may be so adjourned. In
case any sale of all or any part of the Pledged Collateral is made on
credit or for future delivery, the Pledged Collateral so sold may be
retained by the Administrative Agent until the sale price is paid in full
by the purchaser or purchasers thereof, but the Administrative Agent shall
not incur any liability in case any such purchaser or purchasers shall fail
to take up and pay for the Pledged Collateral so sold and, in case of any
such failure, such Pledged Collateral may be sold again upon like notice.
For purposes hereof, (i) a written agreement to purchase the Pledged
Collateral or any portion thereof shall be treated as a sale thereof, (ii)
the Administrative Agent shall be free to carry out such sale pursuant to
such agreement and (iii) no Debtor shall be entitled to the return of the
Pledged Collateral or any portion thereof subject thereto, notwithstanding
the fact that after the Administrative Agent shall have entered into such
an agreement all Events of Default shall have been remedied and the
Obligations paid in full. As an alternative to exercising the power of
sale herein conferred upon it, the Administrative Agent may proceed by a
suit or suits at law or in equity to foreclose upon the Pledged Collateral
and to sell the Pledged Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court appointed receiver. Any sale pursuant
to the provisions of this Section 5.05 shall be deemed to conform to the
commercially reasonable standards as provided in Section 9-504(3) of the
Uniform Commercial Code or its equivalent in other jurisdictions. If under
mandatory requirements of applicable law, the Administrative Agent shall be
required to make disposition of the Pledged Collateral within a period of
time that does not
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permit the giving of notice to the Debtors as herein before provided, the
Administrative Agent need give the Debtors only such notice of disposition
as shall be reasonably practicable in view of such mandatory requirements
of law.
The proceeds of each collection, sale or other disposition under this
Section 5.05, including by virtue of the exercise of the license granted to the
Administrative Agent in Section 5.04(b) hereof, shall be applied in accordance
with Section 5.09 hereof.
The Debtors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Pledged Securities or Pledged Obligations, to
limit purchasers to those who will agree, among other things, to acquire such
Pledged Collateral for their own account, for investment and not with a view to
the distribution or resale thereof. The Debtors acknowledge that any such
private sales may be at prices and on terms less favorable to the Administrative
Agent than those obtainable through a public sale without such restrictions,
and, notwithstanding such circumstances, agree that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that the
Administrative Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Pledged Securities or Pledged Obligations
for the period of time necessary to permit the respective Issuer or issuer
thereof to register it for public sale.
Each of the Debtors further agrees to use its reasonable best efforts
to do or cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Pledged Securities or Pledged
Obligations pursuant to this Section 5.05 valid and binding and in compliance
with any and all other applicable Requirements of Law. Each of the Debtors
further agrees that a breach of any of the covenants contained in this Section
5.05 will cause irreparable injury to the Administrative Agent and the Lenders,
that the Administrative Agent and the Lenders have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 5.05 shall be specifically enforceable against such
Debtor, and, to the extent permitted by law, such Debtor hereby waives and
agrees not to assert any defenses against an action for specific performance of
such covenants except for a defense that no Event of Default has occurred and is
continuing.
5.06 DEFICIENCY. If the proceeds of sale, collection or other
realization of or upon the Pledged Collateral pursuant to Section 5.05 hereof
are insufficient to cover the costs and expenses of such realization and the
payment in full of the Secured Obligations, the Debtors shall remain liable for
any deficiency.
5.07 REMOVALS, NAME CHANGE, ETC. Without at least 30 days' prior
written notice to the Administrative Agent, no Debtor shall (i) maintain any of
its books and records with respect to the Pledged Collateral at any office or
maintain its principal place of business at any place other than at the address
set forth in SCHEDULE 2 hereto, or permit any Inventory or Equipment to be
located anywhere, other than at one of the locations identified in ANNEX 6
hereto or at the premises of a Person processing or storing such Inventory, if
such Person has executed Uniform Commercial Code Financing Statements naming
such Debtor as secured party (which financing statements are hereby
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assigned to the Administrative Agent) or such Person has executed a supplier
subordination agreement satisfactory to the Majority Lenders in form and
substance or in transit from one of such locations to another or (ii) change
its corporate name, or the name under which it does business, from the name
shown on the signature pages hereto.
5.08 PRIVATE SALE. No Creditor shall incur liability as a result of
the sale of the Pledged Collateral, or any part thereof, at any private sale
pursuant to Section 5.05 hereof conducted in a commercially reasonable manner.
Each Debtor hereby waives any claims against any Creditor arising by reason of
the fact that the price at which the Pledged Collateral may have been sold at
any such private sale held in a commercially reasonable manner was less than the
price that might have been obtained at a public sale or was less than the
aggregate amount of the Secured Obligations, even if the Administrative Agent
accepts the first offer received and does not offer the Pledged Collateral to
more than one offeree.
5.09 APPLICATION OF PROCEEDS. Except as otherwise herein expressly
provided and except as provided below in this Section 5.09, the proceeds of any
collection, sale or other realization of all or any part of the Pledged
Collateral pursuant hereto, and any other cash at the time held by the
Administrative Agent under Section 4 hereof or this Section 5, shall be applied
by the Administrative Agent:
FIRST, to the payment of the reasonable costs and expenses of such
collection, sale or other realization, including reasonable out-of-pocket
costs and expenses of the Administrative Agent and the fees and expenses of
its agents and counsel, and all expenses incurred and advances made by the
Administrative Agent in connection therewith;
NEXT, to the payment in full of the Secured Obligations, in each case
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Lenders holding the same may otherwise agree; and
FINALLY, to the payment to the respective Debtor, or its successors or
assigns, or as a court of competent jurisdiction may direct, of any surplus
then remaining.
As used in this Section 5, "PROCEEDS" of Pledged Collateral shall mean cash,
securities and other property realized in respect of, and distributions in kind
of, Pledged Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Debtors or any issuer of or obligor on
any of the Pledged Collateral. Notwithstanding the foregoing, the proceeds of
any cash or other amounts held in the "Letter of Credit Liabilities Sub-Account"
of the Collateral Account pursuant to Section 4.04 hereof shall be applied FIRST
to the Letter of Credit Liabilities outstanding from time to time and SECOND to
the other Secured Obligations in the manner provided above in this Section 5.09.
5.10 ATTORNEY-IN-FACT. Without limiting any rights or powers granted
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the
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Administrative Agent is hereby appointed the attorney-in-fact of each Debtor
for the purpose of carrying out the provisions of this Section 5 and taking
any action and executing any instruments that the Administrative Agent may
deem necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, upon and during the
continuance of any Event of Default, so long as the Administrative Agent
shall be entitled under this Section 5 to make collections in respect of the
Pledged Collateral, the Administrative Agent shall have the right and power
to receive, endorse and collect all checks made payable to the order of any
Debtor representing any dividend, payment or other distribution in respect of
the Pledged Collateral or any part thereof and to give full discharge for the
same. Each Debtor agrees, in the absence of willful wrongdoing or gross
negligence, that neither the Administrative Agent nor any of its agents,
designees or attorneys-in-fact will be liable for any acts of commission or
omission, or for any error of judgment or mistake of fact or law with respect
to the exercise of the power of attorney granted under this Section 5.10.
5.11 PERFECTION. Prior to or concurrently with the execution and
delivery of this Agreement and upon the acquisition or creation of any
securities of or interests in any Issuer, LLC or Partnership the securities or
interests in which are required to be pledged hereunder, each Debtor shall (i)
file such financing statements and other documents in such offices as the
Administrative Agent may request to perfect the security interests granted by
Section 3 of this Agreement, (ii) deliver to the Administrative Agent all
certificates identified in ANNEX 1A hereto, accompanied by undated stock powers
duly executed in blank and (iii) deliver to the Administrative Agent all Pledged
Obligations identified on SCHEDULE 1B hereto.
5.12 TERMINATION. When all Secured Obligations shall have been paid
in full and the Commitments of the Lenders under the Credit Agreement and all
Letter of Credit Liabilities shall have expired or been terminated, this
Agreement shall terminate, and the Administrative Agent shall forthwith cause to
be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Pledged
Collateral and money received in respect thereof, to or on the order of the
respective Debtor and to be released and canceled all licenses and rights
referred to in Section 5.04(b) hereof. The Administrative Agent shall also
execute and deliver to the respective Debtor upon such termination or upon the
sale or other disposition of Property permitted by Section 9.06 of the Credit
Agreement such Uniform Commercial Code termination statements, certificates for
terminating the Liens on the Motor Vehicles and such other documentation as
shall be reasonably requested by the respective Debtor to effect the termination
and release of the Liens on the Pledged Collateral.
5.13 EXPENSES. The Debtors jointly and severally agree to pay to the
Administrative Agent all reasonable out-of-pocket expenses (including reasonable
expenses for legal services of every kind) of, or incident to, the enforcement
of any of the provisions of this Section 5, or performance by the Administrative
Agent of any obligations of the Debtors in respect of the Pledged Collateral
which the Debtors have failed or refused to perform, or any actual or attempted
sale, or any exchange, enforcement, collection, compromise or settlement in
respect of any of the Pledged
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Collateral, and for the care of the Pledged Collateral and defending or
asserting rights and claims of the Administrative Agent in respect thereof,
by litigation or otherwise, including expenses of insurance, and all such
expenses shall be Secured Obligations to the Administrative Agent secured
under Section 3 hereof.
5.14 FURTHER ASSURANCES. Each Debtor agrees that, from time to time
upon the written request of the Administrative Agent, such Debtor will execute
and deliver such further documents and do such other acts and things as the
Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
5.15 IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO ISSUERS, LLCS AND
PARTNERSHIPS. Each of the Debtors hereby authorizes and instructs each Issuer,
LLC and Partnership to comply with any instruction received by it from the
Administrative Agent in writing that (a) states that an Event of Default has
occurred and is continuing and (b) is otherwise in accordance with the terms of
this Agreement and any other Basic Document to which it is a party, without any
other or further instructions from such Debtor, and such Debtor agrees that each
Issuer, LLC and Partnership shall be fully protected in so complying.
5.16 EFFECT OF SALE, ETC. (a) Any sale or resales pursuant to the
provisions of this Agreement, whether under any right or power granted hereby or
thereby or pursuant to any legal proceedings, shall operate to divest each
Debtor of all right, title, interest, claim and demand whatsoever either at law
or in equity, of, in and to the Pledged Collateral, or any part thereof, so
sold, and any Property so sold shall be free and clear of any and all rights of
redemption by, through or under such Debtor. At any such sale any Lender may
bid for and purchase the Pledged Collateral sold and may make payment therefor
as set forth in clause (b) of this Section 5.16, and any such Lender so
purchasing any such Pledged Collateral, upon compliance with the terms of sale,
may hold, retain and dispose of such Pledged Collateral without further
accountability.
(b) The receipt by the Administrative Agent, or by any Person
authorized under any judicial proceedings to make such sale, of the proceeds of
any such sale shall be a sufficient discharge to any purchaser of the Pledged
Collateral, or of any part thereof, sold as aforesaid; and no such purchaser
shall be bound to see to the application of such proceeds, or be bound to
inquire as to the authorization, necessity or propriety of any such sale. In
the event that, at any such sale, any Lender is the successful purchaser, it
shall be entitled, for the purpose of making settlement or payment, to use and
apply such Pledged Collateral to the Secured Obligations by crediting thereon
the amount apportionable and applicable thereto out of the net proceeds of such
sale.
Section 6. MISCELLANEOUS.
6.01 NO WAIVER. No failure on the part of the Administrative Agent
or any of its agents to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any of its agents of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy.
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6.02 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York without regard to
principles of conflicts of law thereof.
6.03 NOTICES. All notices, requests, consents and demands hereunder
shall be in writing and telecopied or delivered to the intended recipient at its
"Address for Notices" specified pursuant to Section 12.02 of the Credit
Agreement and shall be deemed to have been given at the times specified in said
Section 12.02.
6.04 WAIVERS, ETC. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each Debtor
and the Administrative Agent (with the consent of the Lenders as specified in
Section 11.09 of the Credit Agreement). Any such amendment or waiver shall be
binding upon each Creditor, each holder of any of the Secured Obligations and
each Debtor.
6.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each
Debtor, the Creditors and each holder of any of the Secured Obligations
(PROVIDED, HOWEVER, that no Debtor shall assign or transfer its rights or
obligations hereunder without the prior written consent of the Creditors).
6.06 CAPTIONS. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
6.07 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.08 AGENTS. The Administrative Agent may employ agents and
attorneys-in-fact in connection herewith and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith.
6.09 SEVERABILITY. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Creditors in order
to carry out the intentions of the parties hereto as nearly as may be possible
and (ii) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
6.10 ADMINISTRATIVE AGENT NOT A MEMBER. Nothing contained in this
Agreement shall be construed or interpreted (a) to transfer to the
Administrative Agent or any Lender any of the obligations of a partner of a
Partnership or a member or manager of any LLC or (b) to constitute the
Administrative Agent or any Lender a partner of a Partnership or a member or
manager of any LLC.
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6.11 RESTORATION OF RIGHTS AND REMEDIES. If the Administrative Agent
shall have instituted any proceeding to enforce any right or remedy under this
Agreement and such proceeding shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Administrative Agent,
then and in every such case the Administrative Agent and the Debtors and the
Lenders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions under this Agreement and
under the other Basic Documents, and thereafter all rights and remedies of the
Administrative Agent shall continue as though no such proceeding had been
instituted.
6.12 CUMULATIVE REMEDIES. No remedy under this Agreement is intended
to be exclusive of any other remedy, but each and every remedy shall be
cumulative and in addition to any and every other remedy given under this
Agreement or otherwise existing; nor shall the giving, taking or enforcement of
any other or additional security, collateral or guaranty for the payment or
performance of the Secured Obligations operate to prejudice, waive or affect the
security of this Agreement or any rights, powers or remedies under this
Agreement, nor shall the Administrative Agent or any Lender be required to look
first to, enforce or exhaust any such other or additional security, collateral
or guaranties.
6.13 CONSENT. Each Debtor hereby consents that from time to time,
before or after the occurrence or existence of any Event of Default, with or
without notice to or assent from such Obligor, any security at any time held by
or available to the Administrative Agent for any of the Secured Obligations, or
any other security at any time held by or available to the Administrative Agent
for any obligation of any other Person secondarily or otherwise liable for any
of the Secured Obligations, may be exchanged, surrendered, or released and any
of the Secured Obligations may be changed, altered, renewed, extended,
continued, surrendered, compromised, waived or released, in whole or in part, as
the Administrative Agent or any holder thereof may see fit, and each Debtor
shall remain bound under this Agreement notwithstanding any such exchange,
surrender, release, change, alteration, renewal, extension, continuance,
compromise, waiver or release.
6.14 WAIVERS BY DEBTORS. (a) Except as otherwise provided in this
Agreement, THE DEBTORS HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NOTICE OF JUDICIAL HEARING IN CONNECTION WITH THE ADMINISTRATIVE AGENT'S TAKING
POSSESSION OR THE ADMINISTRATIVE AGENT'S DISPOSITION OF ANY OF THE PLEDGED
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICES AND
HEARINGS FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE
DEBTORS WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED
STATES OR OF ANY STATE, and, to the full extent permitted by applicable law,
each Debtor hereby further waives:
(i) all damages occasioned by such taking of possession except any
damages which are the direct result of the Administrative Agent's gross
negligence, bad faith or willful misconduct;
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(ii) all other requirements as to the time, place and terms of sale or
other requirements, with respect to the enforcement of the Administrative
Agent's rights and powers hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
marshaling of assets, extension or moratorium, existing at law or in
equity, by statute or otherwise, now or hereafter in force, in order to
prevent or delay the enforcement of this Agreement or the sale or other
disposition of the Pledged Collateral or any portion thereof, and each
Debtor, for itself and all who may claim under it, insofar as it now or
hereafter lawfully may, hereby waives all such rights.
(b) Each Debtor hereby waives notice of acceptance of this Agreement
and of extensions of credit under the Basic Documents or under any other
agreement, note, document or instrument now or at any time or times hereafter
executed by such Debtor and delivered to the Administrative Agent or any Lender.
Each Debtor further waives presentment and demand for payment of any of the
Secured Obligations, protest and notice of dishonor or default with respect to
any of the Secured Obligations, and all other notices to which such Obligor
might otherwise be entitled, except as otherwise expressly provided in this
Agreement or in the other Basic Documents.
(c) Each Debtor (to the extent that it may lawfully do so) covenants
that it will not at any time insist upon or plead, or in any manner claim or
take the benefit or advance of, any stay (except in connection with a pending
appeal), valuation, appraisal, redemption or extension law now or at any time
hereafter in force that, but for this waiver, might be applicable to any sale
made under any judgment, order or decree based on this Agreement or any other
Basic Document; and each Debtor (to the extent that it may lawfully do so)
hereby expressly waives and relinquishes all benefit and advance of any and all
such laws and hereby covenants that it will not hinder, delay or impede the
execution of any power in this Agreement or therein granted and delegated to the
Administrative Agent, but that it will suffer and permit the execution of every
such power as though no such law or laws had been made or enacted.
6.15 ADDITIONAL COLLATERAL. Without notice or consent of any Debtor
and without impairment of the security interests and rights created by this
Agreement, the Administrative Agent may accept from any person or persons
additional collateral or other security for the Secured Obligations. Neither
the creation of the security interests created hereunder nor the acceptance of
any such additional collateral or security shall prevent the Administrative
Agent from resorting to such additional collateral or security or to the Pledged
Collateral, in any order without affecting the Administrative Agent's rights
hereunder.
6.16 OBLIGATIONS ABSOLUTE. The liability of the Debtors under this
Agreement shall remain in full force and effect without regard to, and shall not
be released, suspended, discharged, terminated or otherwise affected by (a) any
change in the time, place or manner of payment of all or any of the Secured
Obligations, or in any other term of the Basic Documents, the Notes, any waiver,
indulgence, renewal, extension, amendment or modification of or addition,
consent or supplement to or deletion from or any other action or inaction under
or in respect of the Notes or any other Basic Document
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<PAGE>
or any assignment or transfer thereof; (b) any lack of validity or
enforceability, in whole or in part, of the Notes or any other Basic
Document; (c) any furnishing of any additional security for the Secured
Obligations or any acceptance thereof or any release or non-perfection of any
security interest in the Pledged Collateral; (d) any limitation on any
party's liability or obligations under the Notes or any other Basic Document;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to a Debtor, or
any action taken with respect to this Agreement by any trustee or receiver,
or by any court, in any such proceeding, whether or not any Debtor shall have
notice or knowledge of any of the foregoing; (f) any exchange, release or
amendment or waiver of or consent to departure from any agreement pursuant to
which a Lien is created in favor of the Administrative Agent for the benefit
of the Holders, pursuant to which a person other than any Debtor has granted
a security interest; or (g) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Debtor.
6.17 WAIVER OF JURY TRIAL. Each Debtor and the Administrative Agent
each hereby irrevocably waives all right to a trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement or the
transactions contemplated hereby.
[Signature Pages Follow]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year first above
written.
IMCO RECYCLING INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
PHOENIX SMELTING CORPORATION
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO INVESTMENT COMPANY
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
INTERAMERICAN ZINC, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO ENERGY CORP.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
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<PAGE>
IMCO INTERNATIONAL, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO RECYCLING OF CALIFORNIA, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO RECYCLING OF INDIANA INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO RECYCLING OF ILLINOIS INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
METAL MARK, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
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<PAGE>
IMCO MANAGEMENT PARTNERSHIP L.P.
By: IMCO Recycling Inc., its
General Partner
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO INDIANA PARTNERSHIP L.P.
By: IMCO Energy Corp., its
General Partner
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO RECYCLING OF LOUDON INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMSAMET, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMSAMET OF IDAHO, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
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<PAGE>
IMSAMET OF UTAH, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
IMCO ACQUISITION INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
PITTSBURG ALUMINUM, INC.
By: /s/ JAMES B. WALBURG
----------------------------------
Name: James B. Walburg
Title: Vice President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Administrative Agent
By: /s/ KATHERINE FLOYD
----------------------------------
Name: Katherine Floyd
Title: Vice President
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