<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)*
Dominion Bridge Corporation
- -------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.001 per share
- -------------------------------------------------------------------------------
(Title of Class of Securities)
0002571921
- -------------------------------------------------------------------------------
(CUSIP Number)
Douglas A. Gerrard, Deere Park Equities, L.L.C.,
40 Skokie Boulevard, Suite 110,
Northbrook, IL 60062; Telephone no. (847) 509-8500
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 28, 1998
- -------------------------------------------------------------------------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box: / /
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. SEE Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Dominion Park, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/(1)
(b)
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Illinois
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,513,499
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,513,499
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
6,513,499
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.52%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
- ---------------------------
(1) The filing person is also filing this Schedule 13D in its individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Deere Park Equities, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/(1)
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Illinois
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,513,499
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,513,499
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
6,513,499
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.52%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
- -------------------------
(1) The filing person is also filing this Schedule 13D in its individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Deere Park Capital Management, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/(1)
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Illinois
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,619,999
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,619,999
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 6,619,999
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.84%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
- -----------------------------
(1) The filing person is also filing this Schedule 13D in its individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Riverwood Investments, L.L.C.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/(1)
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,513,499
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,513,499
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 6,513,499
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.52%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
- -------------------------
(1) The filing person is also filing this Schedule 13D in its individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Douglas A. Gerrard
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/(1)
(b)
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,619,999
-----------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
6,619,999
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,619,999
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.84%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
- ---------------------------
(1) The filing person is also filing this Schedule 13D in his individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
STG Investments, Ltd.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Liberia
- --------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Leonard Feldman
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/(1)
(b)
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 12,134,689
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
12,134,689
warrants to be issued. See Item 4.)
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,134,689
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.21%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
- ---------------------------
(1) The filing person is also filing this Schedule 13D in his individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Lamar Investments, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/(1)
(b)
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Illinois
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 5,514,690
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
5,514,690
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
5,514,690
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.18%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
(1) The filing person is also filing this Schedule 13D in its individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
DBAE Venture, LLC
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/
(b)
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0 (Excludes warrants which may be issued.
See Item 4.)
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0 (Excludes warrants which may be issued.
See Item 4.)
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON: 0
(Excludes warrants which may be issued. See Item 4.)
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Wellgate International Ltd. (2)
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
- --------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
2,179,862
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
2,179,862
-----------------------------------------------------------
PERSON WITH 10 0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
2,179,862
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
(2) The filing person is filing a separate Schedule 13D in its individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Michel L. Marengere (2)
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,179,861
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
2,179,861
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,179,861
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(2) The filing person is filing a separate Schedule 13D in his individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Fidutech Technologies, Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Nicolas Matossian (2)
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,179,861
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
2,179,861
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,179,861
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
(2) The filing person is filing a separate Schedule 13D in his individual
capacity.
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Greyhorse Resources (Canada) Ltd.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Chris Theodoropoulos
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Olivier Despres
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
J. Arthur Gelinas
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Robert Chartier
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Jacques Delorme
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF SHARES 7 SOLE VOTING POWER
0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Servidel Inc.
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Vitold Jordan
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* /X/
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Ted Shtym
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Rosalba Nespeca
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Micheline Prud'homme
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No.: 0002571921
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
SS OR IRS IDENTIFICATION NOS. OF ABOVE PERSONS
Rene Amyot
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) / /
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Canada
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
-----------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
-----------------------------------------------------------
EACH REPORTING 9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. SECURITY AND ISSUER.
No change.
ITEM 2. IDENTITY AND BACKGROUND.
The following information is hereby added to Item 2:
(a) This statement is filed by those persons previously included in Item 2
as reporting persons, together with Lamar Investments, Inc., an Illinois
corporation ("Lamar"), DBAE, Venture, LLC, a Delaware limited liability company
("DBAE") and Riverwood Investments, L.L.C., a Delaware limited liability company
("Riverwood"). The manager of DBAE is an entity wholly controlled by Gerrard
and Feldman. This Statement is also filed by each of Dominion Park, the LLC,
DPCM, Riverwood, Lamar, Gerrard and Feldman in their individual capacities.
The purpose of this Amendment No. 5 is to report:
(i) the interest of Feldman as a shareholder in DPCM.
(ii) the redemption of Wellgate's interest in Dominion Park and
related transactions, which occurred on April 28, 1998, and terminated
Wellgate's, FTI's, Greyhorse's, Servidel's and Management's
interests in the shares of the Company, including shares of the Company
owned by Dominion Park and other shares of the Company owned by
Wellgate or Management;
(iii) the withdrawal of Wellgate, FTI, Greyhorse, Servidel and
Management as Group Members;
(iv) Dominion Park's contribution of 2,110,100 shares of the
Company (the "Contributed Shares") to the LLC and the admission of
Dominion Park as a Class C Member of the LLC; and
(v) the issuance of convertible notes and warrants in
connection with the financing described herein.
(b) The addresses of each of Lamar, DBAE and Riverwood is 40 Skokie
Boulevard, Suite 110, Northbrook, IL 60062. The address of the LLC, DPCM and
the business address of Gerrard and Feldman has changed to 40 Skokie Boulevard,
Suite 110, Northbrook, IL 60062.
(c) The principal business of each of Lamar and Riverwood is investing
in securities. The principal business of DBAE is merchant banking and investing
in securities.
(d) Neither Lamar, DBAE nor Riverwood has, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) Neither Lamar, DBAE nor Riverwood has, during the last five years,
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future
<PAGE>
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
(f) Lamar is an Illinois corporation, DBAE is a Delaware limited
liability company and Riverwood is a Delaware limited liability company.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The consideration used by Dominion Park to acquire Wellgate's interest in
Dominion Park and Management's other interest in the Company was 775,000 shares
of common stock of American Eco Corporation (the "American Eco Shares").
Dominion Park obtained the American Eco Shares under a Letter Agreement
dated as of April 27, 1998 among Dominion Park, Riverwood, the LLC, Wellgate,
Marengere and Matossian (the "Riverwood Letter Agreement"), a copy of which is
attached hereto as Exhibit 1 and incorporated by reference, pursuant to which
Riverwood contributed the American Eco Shares to Dominion Park and was admitted
as a member of Dominion Park.
Riverwood had obtained the American Eco Shares under an Admission
Agreement, dated as of April 24, 1998, between DPCM and Riverwood (the "DPCM
Admission Agreement") and an Admission Agreement, dated as of April 24, 1998,
between the LLC and Riverwood (the "LLC Admission Agreement"), copies of which
are attached hereto as Exhibits 2 and 3, respectively, and incorporated herein
by reference, pursuant to which the LLC and DPCM contributed the American Eco
Shares to Riverwood, and were admitted as members of Riverwood. Prior to the
LLC's admission to Riverwood, STG, a Class C member of the LLC (as previously
described in Item 3 of the original Schedule 13D), contributed 387,000 of the
American Eco Shares to the LLC. The balance of the 388,000 shares were
purchased by the LLC and DPCM on the open market.
ITEM 4. PURPOSE OF TRANSACTIONS.
Feldman, through the Feldman Declaration of Trust, acquired ownership of
50% of the equity of DPCM. Therefore, for purposes of this Schedule 13D,
beneficial ownership attributed to DPCM is now also attributed to Feldman.
Each of the original Group Members (now deemed to include Feldman)
originally purchased his, her or its shares of common stock for investment
purposes and the Group was formed with the intention of combining the holders of
a significant minority interest in the Company so as to attempt to cohesively
exercise greater influence over the policies and direction of the Company and
implement management's strategic plan for the Company. Eventually, certain of
the Group Members, namely, the LLC, DPCM and Gerrard, differed with Management
regarding such strategic plan and the Group Members determined that it was in
their mutual interest for Dominion Park to redeem Wellgate's interest in
Dominion Park and otherwise terminate Management's interest in the Company. The
transactions described below were intended to accomplish that objective.
Pursuant to the terms of a Redemption Agreement dated April 28, 1998
among Dominion Park, Deere Park, Lamar, Riverwood, Wellgate, Marengere,
Matossian and Amyot (the
<PAGE>
"Redemption Agreement"), a copy of which is attached hereto as Exhibit 4 and
incorporated herein by reference, Wellgate sold to Dominion Park all of
Wellgate's right, title and interest in (a) Dominion Park, (b) 2,023,399
shares of common stock of the Company(2), and (c) any indirect interest
Management or any other person or entity may have in any of the foregoing.
In return for Wellgate's sale of the foregoing, Dominion Park transferred to
Wellgate, the American Eco Shares previously contributed to Dominion Park by
Riverwood. As a result of the transactions effected by the Redemption
Agreement, Wellgate no longer holds any right, title or interest in Dominion
Park or any assets of Dominion Park. None of FTI, Greyhorse, Servidel or
Management currently holds any shares of the Company's common stock, although
Wellgate, Matossian and Marengere beneficially own equity securities of the
Company due to the financing transaction described in Item 4 below.
Additionally, Marengere and Matossian no longer serve as managers of Dominion
Park. Gerrard and Feldman remain as the managers of Dominion Park and do not
intend to replace Marengere and Matossian.
As of the date of the filing of this Amendment No. 5, after giving effect
to the transactions effected by the Redemption Agreement, Dominion Park's assets
include 4,403,399 shares of the Company's common stock and a Class C membership
interest in the LLC, which was received in exchange for the contribution by
Dominion Park of 2,110,100 shares of the Company's common stock. Dominion Park
was previously admitted as a Class C Member of the LLC pursuant to the terms of
an Admission Agreement dated as of March 16, 1998 (the "DP Admission
Agreement"), a copy of which is attached hereto as Exhibit 5 and incorporated
herein by reference. Under the Operating Agreement (a copy of which was
previously filed as Exhibit 1 to the originally filed Schedule 13D), as
supplemented by the DP Admission Agreement, Dominion Park transferred the
ownership of the Contributed Shares to the LLC. In addition, under the
Operating Agreement, as supplemented by the DP Admission Agreement, the LLC was
obligated to vote and dispose of the Contributed Shares pursuant to the terms of
that certain Letter Agreement dated August 19, 1997, as amended (a copy of which
was previously filed as Exhibit 3 to the originally filed Schedule 13D).
Therefore, for purposes of Section 13 of the Exchange Act and the beneficial
ownership requirements of the Act, the beneficial ownership previously reported
by the LLC and Dominion Park did not change. Dominion Park was admitted as a
Class C member of the LLC for financial accounting purposes.
Concurrently with the transactions effected by the Redemption Agreement,
Lamar, which is wholly-owned by Feldman and therefore is an affiliate of Deere
Park and Dominion Park, and Wellgate entered into a Credit Agreement dated as of
April 6, 1998 among Lamar and Wellgate, as Lenders, Groupe Cedar Canada Inc., as
Borrower, and the Company, Dominion Bridge, Inc., Steen Contractors Limited,
Industries Davie Inc., Cedar Group Australia Pty Limited, Les Entrepreneurs
Becker Inc., Becker Contractors Limited, and MIL Intermodal Inc. as Subsidiary
Guarantors (the "Lamar/Wellgate Credit Agreement"), a copy of which is attached
hereto as Exhibit 6 and incorporated herein by reference. Pursuant to the
Lamar/Wellgate Credit Agreement, Lamar agreed to make revolving credit loans
available to Groupe Cedar in a maximum aggregate amount of U.S. $10 million and
Wellgate loaned to Groupe Cedar U.S. $4.8 million.
- ------------------------------
(2) These 2,023,399 shares were owned by Wellgate pursuant to transfers from
Management of those 2,057,160 shares of Common Stock (including the Guaranty
Shares) over which Dominion Park was previously granted a proxy. Due to the
transactions described herein, Dominion Park no longer holds a proxy over
those shares, but rather directly owns the 2,023,399 shares.
<PAGE>
In connection with the Lamar/Wellgate Credit Agreement, Lamar was
issued a convertible note, under which unpaid principal may be converted at
any time, at the option of the holder into shares of the Company's common
stock. Lamar also will be issued warrants to purchase up to 1,668,536 shares
of the Company's common stock as funding under the Credit Agreement occurs.
Initial funding of Lamar's lending under the Credit Agreement occurred on
April 29, 1998 and Lamar expects to fund the entire amount of the facility
within 60 days of the date of the initial funding. Wellgate also was issued a
convertible note, under which unpaid principal may be converted at any time,
at the option of the holder into shares of the Company's common stock, as
well as warrants to purchase 333,708 shares of the Company's common stock.
To obtain temporary funding for revolving credit loans made by it
under the Lamar/Wellgate Credit Agreement, Lamar entered into a Loan and
Security Agreement with DBAE (the "DBAE Loan Agreement"), a copy of which is
attached hereto as Exhibit 7 and incorporated herein by reference, pursuant
to which DBAE made a term loan to Lamar in the principal amount of U.S. $10
million. In consideration of the loan under the DBAE Loan Agreement, Lamar
may transfer to DBAE up to one-third of the warrants issued to Lamar pursuant
to the Lamar/Wellgate Credit Agreement.
The source of funding for the U.S. $4.8 million loan by Wellgate under
the Lamar/Wellgate Credit Agreement was payments made to corporations
controlled by Marengere and Matossian and to Amyot under separate Settlement,
Release and Discharge Agreements between the Company and each of them.
Pursuant to these agreements, concurrently with the transactions effected by
the Redemption Agreement, Messrs. Marengere, Matossian and Amyot resigned as
directors of the Company and its affiliates and resigned from all offices
they held in the Company and its affiliates. Messrs. Marengere, Matossian
and Amyot will remain as paid consultants to Lamar for a period of three
years. It is expected that Feldman and Gerrard will nominate or influence
the selection of replacements for Marengere, Matossian and Marengere as
directors (at such time as additional directors may be nominated, there being
no current plans to replace them as directors of the Company) and of officers
of the Company and its affiliates. Allen Gerrard, the father of Douglas
Gerrard, is a director of the Company and became the Interim Chief Executive
Officer of the Company on April 29, 1998.
The Company maintains a Rights Plan which provides for the issuance of
rights to purchase common equivalent shares of the Company at a 50% discount
to the then current market price in the event that certain persons acquire
beneficial ownership of more than 15% of the Company's outstanding common
shares. The Group Members are exempt from the operation of the Rights Plan so
long as they do not acquire beneficial ownership of more than 23% of the
Company's outstanding shares. The transactions described herein have resulted
in the Group Members acquiring beneficial ownership of 31.21% of the
Company's outstanding shares. The Company's Board of Directors has amended
the Rights Plan to delay the distribution of the rights until 45 days after
the closing (April 28, 1998) of the transactions described herein. The Group
Members understand that during this 45 day period the Board of Directors of
the Company will evaluate the operation of the Rights Plan with respect to
the transactions described herein. At this time, the Group Members have no
intention of disposing of shares of common stock of the Company in order to
comply with the beneficial ownership limitation imposed on them by the Rights
Plan.
As a result of the transactions described above, Dominion Park, the
LLC, DPCM, Riverwood, Gerrard, Feldman, Lamar and DBAE (collectively, the
remaining Group Members) will no longer act with Management, namely,
Marengere, FTI, Matossian, Greyhorse, Theodoropoulos, Despres, Gelinas,
Chartier, Delorme, Servidel, Jordan, Shytm, Nespeca, Prud'homme, Amyot and
Wellgate. However, the remaining Group Members intend to develop and support
the Company's remaining management and any new management employed by the
Company. The remaining Group Members intend to retain their interests in the
Company but will continually assess the market for the common stock, as well
as the Company's financial position and operations. They do not have any
definitive plans to acquire additional shares of common stock at the present
time, whether upon conversion of the convertible note or exercise of the
warrants issued under the Lamar/Wellgate Credit Agreement (which provide
conversion and exercise prices in excess of the current market value of the
common stock) or otherwise. However, they may determine to acquire
additional shares in the future depending on, among other things, the
prevailing market price of the common stock and their assessment of the
Company's business, financial condition and prospects. The remaining Group
Members may determine, from time to time or at any time, to sell or otherwise
dispose of some or all of the common stock, depending on the same factors.
In making any such determination, the remaining Group Members will consider
their goals and objectives, other
<PAGE>
business opportunities available to them, as well as general economic and stock
market conditions. The foregoing actions may be taken by one or more of the
remaining Group Members and, while currently there are no plans to do so,
possibly in combination with others.
Except as set forth above and subject to the qualifications set forth in
the immediately following paragraph, none of the remaining Group Members has any
definitive plans or proposals which relate to or would result in any of the
following:
(a) The acquisition of additional securities of the Company, or the
disposition of securities of the Company;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company;
(c) A sale or transfer of a material amount of assets of the Company;
(d) Any material change in the present capitalization or dividend
policy of the Company;
(e) Any other material change in the Company's business or corporate
structure;
(f) Changes in the Company's charter, by-laws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person;
(g) A class of securities of the Company being delisted from a
national securities exchange or ceasing to be authorized to be quoted on an
inter-dealer quotation system of a registered national securities association;
(h) A class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934 (the "Exchange Act"); or
(i) Any action similar to those enumerated above.
Although, except as disclosed herein, none of the remaining Group Members
has any definitive plans or proposals to engage in any of the transactions
specified in paragraphs (a) through (i) of the immediately preceding paragraph,
the remaining Group Members intend to actively assess the market for the
Company's common stock, the Company's business, financial condition and
prospects, alternative investment opportunities, general economic, business and
monetary conditions, as well as other factors deemed relevant from time to time.
Based on such assessment, it is likely that such persons may consider proposing
to the Company one or more acquisitions, divestitures, business combinations,
financings or other of such transactions in the future.
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The aggregate percentage of shares of common stock reported
owned by each person herein is based upon 33,370,725 shares outstanding,
which is the total number of shares of common stock outstanding, as reported
by the Company in its definitive proxy statement, filed with the Securities
and Exchange Commission on March 5, 1998.
Each of Dominion Park, the LLC and Riverwood beneficially owns
6,513,499 shares of common stock, representing approximately 19.52% of
the number of issued and outstanding shares of common stock as of April
28, 1998.
DPCM and Gerrard beneficially own 6,619,999 shares of
common stock, representing approximately 19.84% of the number of issued
and outstanding shares of common stock as of April 28, 1998.
Feldman beneficially owns 12,134,689 shares of common stock,
representing aproximately 31.21% of the issued and outstanding shares
of common stock after giving effect to a conversion of the convertible
note and warrants issued and to be issued to Lamar.
FTI, Greyhorse, Theodoropoulos, Despres, Gelinas, Chartier,
Delorme, Servidel, Jordan, Shtym, Nespeca, Prud'homme and Amyot
beneficially own no shares of common stock of the Company as of
April 28, 1998.
Wellgate, Marengere and Matossian beneficially own 2,179,861
shares of common stock, representing approximately 6.1% of the number
of issued and outstanding shares of common stock after giving effect to
a conversion of the convertible note and warrants issued to Wellgate.
Lamar beneficially owns 5,514,690 shares of common stock,
representing approximately 14.18% of the issued and outstanding shares
of common stock after giving effect to a conversion of the convertible
notes and warrants issued and to be issued to Lamar.
Neither STG or DBAE beneficially owns any shares of the
Company's common stock. DBAE may acquire from Lamar up to one-third of
the warrants issued to Lamar pursuant to the Lamar/Wellgate Credit
Agreement.
(b) Each of the LLC and Gerrard shares the power to vote and dispose
of the shares of common stock beneficially owned by it or him with the other.
Each of DPCM and Riverwood shares the power to vote and dispose of the shares of
common stock beneficially owned by it with the other. Each of DPCM, Gerrard and
Feldman shares the power to vote and dispose of the shares of common stock
beneficially owned by it or him with the others. Each of Lamar and Feldman
share the power to vote and dispose of the shares of common stock beneficially
owned by it or him with the other.
(c) Other than has been described herein, no Group Member has entered
into any transactions in the Company's common stock since the most recent
Schedule 13D filing.
(d) Except as set forth in Item 4 hereof, no person other than the
LLC, DPCM, Riverwood, Gerrard or Feldman is known to have the right to receive
or the power to direct the receipt of dividends from or the proceeds from the
sale of the shares of common stock beneficially owned by such persons, as set
forth in Item 5(a) above and no person other than each remaining respective
Group Member is known to have the right to receive or the power to direct the
receipt of dividends from or the proceeds from the sale of the shares of common
stock owned by such Group Member, if any.
(e) Not applicable.
<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
As described in Item 4, Dominion Park, the LLC, DPCM, Riverwood, Lamar,
DBAE, Gerrard and Feldman will not act with Management. Management, namely,
Marengere, FTI, Matossian, Greyhorse, Theodoropoulos, Despres, Gelinas,
Chartier, Delorme, Servidel, Jordan, Shtym, Nespeca, Prud'homme, Amyot and
Wellgate, are no longer Group Members.
Each of Lamar and DBAE has executed a Joint Filing Agreement, dated as of
April 28, 1998, (the "Joint Filing Agreement"), pursuant to Rule 13d-1(f) of the
Exchange Act, pursuant to which such Group Members granted a power of attorney
in favor of Gerrard to execute on their behalf this Schedule 13D and all
amendments hereto and such other documents in connection therewith, and to file
the same with the Securities and Exchange Commission on behalf of such Group
Members. A copy of the Joint Filing Agreement is attached hereto as Exhibit 8
and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
1. Riverwood Letter Agreement
2. DPCM Admission Agreement
3. LLC Admission Agreement
4. Redemption Agreement
5. DP Admission Agreement
6. Lamar/Wellgate Credit Agreement
7. DBAE Credit Agreement
8. Joint Filing Agreement
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 7, 1998
/s/ Douglas A. Gerrard
------------------------------
Douglas A. Gerrard
<PAGE>
ADMISSION AGREEMENT
-------------------
DOMINION PARK, L.L.C.
650 DUNDEE ROAD
NORTHBROOK, ILLINOIS 60062
April 27, 1998
Mr. Michel L. Marengere Riverwood Investments, L.L.C.
Mr. Nicolas V. Matossian Deere Park Equities, L.L.C.
Wellgate International, Ltd. 650 Dundee Road
c/o Dominion Bridge Corporation Northbrook, Illinois 60062
500 Notre Dame
Lachine (Quebec) CANADA H8S 2B2
Gentlemen:
The purpose of this letter agreement ("Agreement") is to set forth the
agreement by and between Dominion Park, L.L.C. ("DOMINION PARK"), and Riverwood
Investments, L.L.C. ("RIVERWOOD") to admit Riverwood as a member of Dominion
Park, and to verify the consent to such transaction by Deere Park Equities,
L.L.C. ("DEERE PARK"), Wellgate International, Ltd. ("WELLGATE"), Michel L.
Marengere ("MARENGERE"), and Nicolas V. Matossian ("MATOSSIAN").
Dominion Park is governed by those certain letter agreements (the "LETTER
AGREEMENTS") dated as of August 19, 1997 and August 29, 1997, among Marengere,
Matossian and Deere Park. Currently, Deere Park and Wellgate are the sole
members of Dominion Park. Furthermore, Dominion Park is a Class C member of
Deere Park pursuant to that certain Admission Agreement (the "ADMISSION
AGREEMENT") dated March 16, 1998, between Dominion Park and Deere Park.
Riverwood desires to become, and Dominion Park desires that Riverwood become, a
member of Dominion Park on the terms and conditions contained herein.
1. ADMISSION OF RIVERWOOD. Upon Riverwood's payment of the capital
contribution set forth in paragraph 2, Riverwood shall be admitted to Dominion
Park as a Member.
2. CAPITAL CONTRIBUTION. Contemporaneously with the execution of this
Agreement, Riverwood shall make a contribution to the capital of Dominion Park
in the form of Seven Hundred Seventy-Five Thousand (775,000) shares of common
stock, no par value per share, of American Eco Corporation, an Ontario, Canada
corporation (the "American Eco Shares"), which shares were not issued in
transactions imposing any restrictions under applicable securities laws on their
subsequent transfer.
3. RIGHTS WITH RESPECT TO THE AMERICAN ECO SHARES. Riverwood hereby
acknowledges that Dominion Park shall have all rights with respect to the
American Eco Shares and that Riverwood's only interest in such stock shall be as
a member of Dominion Park.
<PAGE>
April 27, 1998
Page 2
4. ENTIRE AGREEMENT. This Agreement together with the Letter Agreements
and the Admission Agreement contain the entire agreement and understanding of
the parties with respect to the subject matter hereof, and no representations,
promises, agreements or understandings regarding the subject matter hereof shall
be of any force or effect unless in writing, executed by the parties hereto. In
the event of any conflict between the provisions of this Agreement and the
Letter and Admission Agreements, the provisions of this Agreement shall control.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to conflict of
law principles thereof.
6. SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, the remainder nevertheless shall remain in full force
and effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it nevertheless shall remain in full force and effect
in all other circumstances.
7. MODIFICATIONS AND WAIVERS. No change, modification or waiver of any
provision of this Agreement shall be valid or binding unless it is in writing
dated subsequent to the date hereof and signed by the party intended to be
bound. No waiver of any breach, term or condition of this Agreement by either
party shall constitute a subsequent waiver of the same or any other breach, term
or condition.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
DOMINION PARK, L.L.C., WELLGATE INTERNATIONAL, LTD.,
a Delaware limited liability company a British Virgin Islands corporation
By: /s/ Michel Marengere By: /s/ Michel Marengere
----------------------------- -------------------------------
Michel L. Marengere, Manager
Its:
------------------------------
By: /s/ Nicolas Matossian By: /s/ Nicolas Matossian
----------------------------- -------------------------------
Nicolas V. Matossian, Manager
By: /s/ Gary I. Levenstein /s/ Nicolas Matossian
----------------------------- ------------------------------
Gary I. Levenstein, as Attorney-in-fact NICOLAS V. MATOSSIAN
for Leonard Feldman, Manager
By: /s/ Gary I. Levenstein
----------------------------- /s/ Michel Marengere
Gary I. Levenstein, as Attorney-in-fact ------------------------------
for Douglas A. Gerrard, Manager MICHEL L. MARENGERE
RIVERWOOD INVESTMENTS, L.L.C.,
a Delaware limited liability company
By: /s/ Gary I. Levenstein
-----------------------------
Gary I. Levenstein, as Attorney-in-Fact
for Douglas A. Gerrard, Manager
DEERE PARK EQUITIES, L.L.C.,
an Illinois limited liability company
By: /s/ Gary I. Levenstein
-----------------------------
Gary I. Levenstein, as Attorney-in-Fact
Douglas A. Gerrard, Member-Manager
<PAGE>
ADMISSION AGREEMENT
THIS ADMISSION AGREEMENT (the "AGREEMENT") is entered into as of the 24th
day of April, 1998, by and between DEERE PARK CAPITAL MANAGEMENT, INC., an
Illinois corporation ("MEMBER"), and RIVERWOOD INVESTMENTS, L.L.C., a Delaware
limited liability company ("COMPANY").
WHEREAS, Member desires to become, and Company desires that Member become,
a member of Company upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. ADMISSION OF MEMBER. Upon Member's contribution of the capital set
forth in Paragraph 2, Member shall be admitted to Company as a member and
subject to all the rights and obligations of a member as set forth in the
Delaware Limited Liability Company Act, Delaware Code Annotated, Title 6,
Chapter 18, Sections 18-101 ET SEQ. (the "ACT").
2. CAPITAL CONTRIBUTION. Contemporaneously with the execution of this
Agreement, Member shall make a contribution to the capital of Company in the
form of Two Hundred Thousand (200,000) shares of common stock, no par value, of
American Eco Corporation, an Ontario, Canada corporation (the "AMERICAN ECO
SHARES"). The American Eco Shares or any cash or other securities substituted
therefor shall be deemed capital of Company, for use in its business and subject
to the risks of its operations.
3. RIGHTS WITH RESPECT TO AMERICAN ECO SHARES. Member hereby
acknowledges that Company shall have all voting and other rights with respect to
the American Eco Shares and that Member's only interest in such stock is as a
member of Company.
4. ENTIRE AGREEMENT. This Agreement and the Act together contain the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and no representations, promises, agreements or understandings
regarding the subject matter hereof shall be of any force or effect unless in
writing, executed by the parties and dated subsequent to the date hereof. In
the event of any conflict between the provisions of this Agreement and the Act,
the provisions of this Agreement shall control.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to conflict of
law principles thereof.
6. SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, the remainder nevertheless shall remain in full force
and effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it nevertheless shall remain in full force and effect
in all other circumstances.
<PAGE>
7. MODIFICATIONS AND WAIVERS. No change, modification or waiver of any
provision of this Agreement shall be valid or binding unless it is in writing
dated subsequent to the date hereof and signed by the party intended to be
bound. No waiver of any breach, term or condition of this Agreement by either
party shall constitute a subsequent waiver of the same or any other breach, term
or condition.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
RIVERWOOD INVESTMENTS, L.L.C., DEERE PARK CAPITAL MANAGEMENT, INC.
a Delaware limited liability company an Illinois corporation
By: /s/ Gary I. Levenstein By: /s/ Gary I. Levenstein
------------------------------- ---------------------------------
Gary I. Levenstein, Gary I. Levenstein,
as Attorney-in-Fact as Attorney-in-Fact
for Douglas A. Gerrard, Manager for Douglas A. Gerrard, President
2
<PAGE>
ADMISSION AGREEMENT
THIS ADMISSION AGREEMENT (the "AGREEMENT") is entered into as of the 24th
day of April, 1998, by and between DEERE PARK EQUITIES, L.L.C., an Illinois
limited liability company ("MEMBER"), and RIVERWOOD INVESTMENTS, L.L.C., a
Delaware limited liability company ("COMPANY").
WHEREAS, Member desires to become, and Company desires that Member become,
a member of Company upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual premises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. ADMISSION OF MEMBER. Upon Member's contribution of the capital set
forth in Paragraph 2, Member shall be admitted to Company as a member and
subject to all the rights and obligations of a member as set forth in the
Delaware Limited Liability Company Act, Delaware Code Annotated, Title 6,
Chapter 18, Sections 18-101 ET SEQ. (the "ACT").
2. CAPITAL CONTRIBUTION. Contemporaneously with the execution of this
Agreement, Member shall make a contribution to the capital of Company in the
form of Five Hundred Seventy-Five Thousand (575,000) shares of common stock, no
par value, of American Eco Corporation, an Ontario, Canada corporation (the
"AMERICAN ECO SHARES"), 387,000 of which are being contributed from the account
of one of its Class C members, STG Investments, Ltd., a Liberian corporation.
The American Eco Shares or any cash or other securities substituted therefor
shall be deemed capital of Company, for use in its business and subject to the
risks of its operations.
3. RIGHTS WITH RESPECT TO AMERICAN ECO SHARES. Member hereby
acknowledges that Company shall have all voting and other rights with respect to
the American Eco Shares and that Member's only interest in such stock is as a
member of Company.
4. ENTIRE AGREEMENT. This Agreement and the Act together contain the
entire agreement and understanding of the parties with respect to the subject
matter hereof, and no representations, promises, agreements or understandings
regarding the subject matter hereof shall be of any force or effect unless in
writing, executed by the parties and dated subsequent to the date hereof. In
the event of any conflict between the provisions of this Agreement and the Act,
the provisions of this Agreement shall control.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to conflict of
law principles thereof.
6. SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, the remainder nevertheless shall remain in full force
and effect. If any provision
<PAGE>
is held invalid or unenforceable with respect to particular circumstances, it
nevertheless shall remain in full force and effect in all other circumstances.
7. MODIFICATIONS AND WAIVERS. No change, modification or waiver of any
provision of this Agreement shall be valid or binding unless it is in writing
dated subsequent to the date hereof and signed by the party intended to be
bound. No waiver of any breach, term or condition of this Agreement by either
party shall constitute a subsequent waiver of the same or any other breach, term
or condition.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
RIVERWOOD INVESTMENTS, L.L.C., DEERE PARK EQUITIES, L.L.C.,
a Delaware limited liability company an Illinois limited liability company
By: /s/ Gary I. Levenstein By: /s/ Gary I. Levenstein
------------------------------------ -------------------------------
Gary I. Levenstein, as Gary I. Levenstein, as
Attorney-in-Fact for Douglas A Attorney-in-Fact for Douglas A.
Gerrard, Manager Gerrard, Managing Member
2
<PAGE>
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT ("AGREEMENT") is made and entered into as of the
28 day of April, 1998 by and among Dominion Park, L.L.C., a Delaware limited
liability company ("DOMINION PARK"), Deere Park Equities, L.L.C., an Illinois
limited liability company ("DEERE PARK"), Lamar Investments, Inc., an Illinois
corporation ("Lamar"), Riverwood Investments, L.L.C., a Delaware limited
liability company ("RIVERWOOD"), Wellgate International, Ltd., a British Virgin
Islands corporation ("WELLGATE"), Michel L. Marengere ("MARENGERE"), Nicolas V.
Matossian ("MATOSSIAN"), and Rene Amyot ("AMYOT"). Marengere, Matossian and
Amyot are hereinafter collectively referred to as "DBC MANAGEMENT."
RECITALS:
A. The following parties are the current members of Dominion Park:
(i) Deere Park; (ii) Wellgate; and (iii) Riverwood.
B. Lamar is an affiliate of Dominion Park, Deere Park and Riverwood.
C. Dominion Park is governed by the terms of that certain letter
agreement dated August 19, 1997 among Deere Park, Marengere and Matossian, as
amended on August 29, 1997, March 16, 1998 and on the date hereof, a copy of
which is attached hereto (with all amendments) as EXHIBIT A (the "LETTER
AGREEMENT").
D. Dominion Park's assets currently include the following property:
(i) 2,380,000 shares (the "DOMINION PARK DBC SHARES") of common stock, par value
of $0.001 per share, of Dominion Bridge Corporation, a Delaware corporation
("DBC"); (ii) a Class C membership interest in Deere Park Equities, which
membership interest was received in exchange for the contribution of 2,110,100
shares of common stock, par value of $0.001 per share, of DBC to Deere Park
Equities by Dominion Park; and (iii) 775,000 shares (the "AMERICAN ECO SHARES")
of common stock, no par value, of American Eco Corporation, an Ontario, Canada
corporation ("AMERICAN ECO").
E. Wellgate currently owns 2,023,399 shares of common stock, par value
$0.001 per share, of DBC (the "WELLGATE DBC SHARES"), of which 500,000 shares of
common stock of DBC have been pledged to Dominion Park, are in the possession of
Dominion Park and are referred to in the Letter Agreement as the "Management
Guaranty Shares."
F. The members of Dominion Park have determined it is in the best
interest of Dominion Park to redeem all of Wellgate's interest in Dominion Park
(and, indirectly, any interest of DBC Management or any other shareholder of
Wellgate in Dominion Park), on the terms and subject to the conditions set forth
below.
<PAGE>
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. REDEMPTION OF WELLGATE. Wellgate hereby agrees to sell to Dominion
Park, and Dominion Park hereby agrees to purchase from Wellgate, on the date
hereof, free and clear of all liens, pledges, charges, security interests,
claims, encumbrances and restrictions of any nature whatsoever (collectively,
"ENCUMBRANCES"), (a) all of Wellgate's interest in Dominion Park including,
without limitation, Wellgate's membership interest in Dominion Park and all of
Wellgate's right, title and interest in and to the Dominion Park DBC Shares, (b)
the Wellgate DBC Shares, and (c) any indirect interest DBC Management or any
other person or entity may have in any of the foregoing. In consideration
therefor, Dominion Park hereby agrees to transfer to Wellgate, on the date
hereof, by means of delivery to Pouliot Mercure (as escrow agent for the parties
hereto), all of the American Eco Shares, free and clear of all Encumbrances
other than the restrictions imposed pursuant to the Lock-Up and Escrow Agreement
described in Section 2 of this Agreement.
2. LOCK-UP AND ESCROW AGREEMENT. Concurrently with execution of this
Agreement, the parties hereto and Pouliot Mercure, as escrow agent, will enter
into a Lock-Up and Escrow Agreement in form and substance satisfactory to all of
such parties, which will impose certain restrictions on the sale, transfer or
hypothecation by Wellgate or DBC Management of the American Eco Shares.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF WELLGATE AND DBC
MANAGEMENT.
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING WELLGATE.
Wellgate, Marengere, Matossian and Amyot hereby represent, warrant and covenant
to Dominion Park, Deere Park, Lamar and Riverwood as follows:
(i) Wellgate is a corporation duly organized, validly existing
and in good standing under the laws of the British Virgin Islands.
(ii) Each of Wellgate, Marengere, Matossian and Amyot have full
power and authority to execute and perform this Agreement. This Agreement has
been duly executed and delivered by Wellgate, Marengere, Matossian and Amyot,
and constitutes the legal, valid and binding obligation of such parties
enforceable against them in accordance with its terms.
(iii) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by Wellgate have been duly
authorized by the shareholders and the board of directors of Wellgate, do not
require any
2
<PAGE>
further authorization of Wellgate or any other person or entity, and will not
violate or contravene any provision of law affecting Wellgate, any order of
any court or other agency of government, Wellgate's charter or articles of
incorporation, its by-laws, or any agreement to which Wellgate is a party or
by which it is bound.
(iv) The shares of DBC common stock previously contributed by
Wellgate to Dominion Park (i.e., the "MANAGEMENT OPTION SHARES," as defined in
the Letter Agreement), and the Wellgate DBC Shares being transferred to Dominion
Park pursuant to this Agreement, are (i) duly authorized, validly issued, fully
paid and non-assessable, and free and clear of any Encumbrances, and (ii) are
not subject to any restrictions on transfer under applicable securities laws,
except for those that apply to sales of securities by an affiliate of the issuer
under Rule 144 of the U.S. Securities Act of 1933, as amended.
(v) Attached hereto as EXHIBIT B are true and correct copies of
the articles of incorporation, bylaws, and a list of the current shareholders,
directors and officers of, Wellgate. Attached hereto as EXHIBIT C is a true and
correct copy of a Settlement, Release and Discharge Agreement duly executed by
each person or entity that has a direct or indirect interest in Wellgate, the
Management Option Shares previously contributed by Wellgate to Dominion Park, or
the Wellgate DBC Shares, including, without limitation, Chris Theodoropoulos,
Olivier Despres, J. Arthur Gelinas, Robert Chartier, Jacques Delorme, Vitold
Jordan, Ted Shtym, Rosalba Nespeca and Micheline Prud'homme, pursuant to which
each such party has released any claims it may have with respect to the
Management Option Shares or any interest in Wellgate or its property.
(vi) Wellgate has good and marketable title to the Wellgate DBC
Shares. On the date of execution hereof, Wellgate will transfer to Dominion
Park, subject to no Encumbrances, (i) good and marketable title to all of the
Wellgate DBC Shares, and (ii) all of its interest in Dominion Park or any
property held thereby.
(vii) DBC, DBC Management and Wellgate have not taken and will not
take, directly or indirectly, any action designated to or which might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the common stock of DBC, and DBC Management is not aware of any such action
taken or to be taken by any of such parties or by any affiliate of DBC.
(b) REPRESENTATIONS AND WARRANTIES REGARDING DBC AND ITS
SUBSIDIARIES. Wellgate, Marengere, Matossian and Amyot hereby represent and
warrant to Dominion Park, Deere Park, Lamar and Riverwood that, to the best of
their actual knowledge after due inquiry:
(i) Attached hereto as EXHIBIT D is a true and correct summary
of all of DBC's and its subsidiaries' unpaid tax and fiduciary liabilities and
of all agreements DBC and its subsidiaries have reached regarding the payment of
such
3
<PAGE>
liabilities, and that DBC and its subsidiaries have has performed all of
their respective obligations under such agreements required to be performed
as of the date hereof.
(ii) All documents required to be filed by DBC with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), have been filed and, at
the time they were filed, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(iii) Since the date of filing of DBC's most recent Quarterly
Report on Form 10-Q under the Exchange Act, other than as disclosed on EXHIBIT E
hereto, there have been no material adverse changes in the condition (financial
or other), business or material prospects of DBC or any of its subsidiaries, and
no material transactions have been consummated by DBC or any of its subsidiaries
since such date other than in the ordinary course of business.
It is understood that Wellgate, Marengere, Matossian and Amyot are not actively
engaged in the management of the business of DBC's subsidiary McConnell Dowell
Corporation, an Australian corporation ("MDC"), and that the foregoing
representations, insofar as they pertain to MDC, are based solely on examination
of MDC's public filings with Australian authorities and actual knowledge of
Wellgate, Marengere, Matossian and Amyot regarding any matters not disclosed, or
not accurately disclosed, therein.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DOMINION PARK, DEERE
PARK, LAMAR AND RIVERWOOD.
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING DOMINION
PARK. Dominion Park, Deere Park, Lamar and Riverwood hereby represent, warrant
and covenant to Wellgate, Marengere, Matossian and Amyot as follows:
(i) Dominion Park is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Delaware.
(ii) Dominion Park has full power and authority to execute and
perform this Agreement. This Agreement has been duly executed and delivered by
Dominion Park, and constitutes the legal, valid and binding obligation of
Dominion Park enforceable against it in accordance with its terms.
(iii) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by Dominion Park have been
duly authorized by the managers and members of Dominion Park, do not require any
further authorization of Dominion Park or any person or entity, and will not
violate or contravene any provision of law affecting Dominion Park, any order of
any court, Dominion Park's
4
<PAGE>
Articles of Organization, or any agreement to which Dominion Park is a party
or by which it is bound.
(iv) The American Eco Shares being transferred to Wellgate
pursuant to this Agreement are (a) duly authorized, validly issued, fully paid
and non-assessable, and free and clear of any Encumbrances, and (b) were not
issued in transactions imposing any restrictions under applicable securities
laws on their subsequent transfer.
(v) Dominion Park has good and marketable title to the American
Eco Shares. On the date of execution hereof, Dominion Park will transfer to
Pouliot Mercure (as escrow agent for the parties hereto) good and marketable
title to all of the American Eco Shares.
(vi) Neither Dominion Park nor its affiliates have taken, and
such parties will not take, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of the common stock of American Eco, and neither
Dominion Park nor its affiliates are aware of any such action taken or to be
taken by Dominion Park or any affiliate thereof.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING AMERICAN
ECO. Dominion Park, Deere Park, Lamar and Riverwood hereby represent and
warrant to Wellgate, Marengere, Matossian and Amyot that, to the best of their
knowledge, all documents required to be filed by American Eco with the
Commission pursuant to the Act, at the time they were filed, did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
It is understood that Dominion Park, Deere Park, Lamar and Riverwood are not
actively engaged in the management of the business of Eco and that the foregoing
representations are based solely on actual knowledge of Dominion Park, Deere
Park, Lamar and Riverwood regarding any matters not disclosed, or not accurately
disclosed in, such documents.
5. OTHER AGREEMENTS.
(a) CLOSING MEMORANDUM. On the date of execution hereof, the
parties hereto hereby agree to enter into those transactions and agreements
described in the Closing Memorandum.
(b) MUTUAL RELEASES/COVENANTS NOT TO SUE.
(i) Dominion Park, Deere Park, Lamar, Riverwood and their
respective members, managers, shareholders, directors, officers and affiliates,
for themselves and their respective heirs, administrators, successors and
assigns, (collectively, the "DEERE PARK PARTIES"), hereby irrevocably and
unconditionally release and forever discharge each of Wellgate, Marengere,
Matossian and Amyot and their
5
<PAGE>
respective heirs, administrators, successors and assigns (collectively, the
"WELLGATE PARTIES") of and from any and all claims for, and agree not to file
any lawsuit or other legal action seeking to recover, any Losses (as
hereinafter defined) or Expenses (as hereinafter defined) relating to or
arising out of any matters existing or occurring prior to the date hereof;
provided, however, that the foregoing release shall in no event extend to any
claims (i) arising out matters pertaining to DBC to the extent such Claims
have not been released by DBC pursuant to those certain Settlement, Release
and Discharge Agreements dated of even date herewith entered into by
Marengere, Matossian and Amyot, respectively, with DBC, (ii) that may be
asserted by any of the Deere Park Parties under applicable antifraud laws,
including without limitation Sections 10b-5 and Section 18 of the Act or to
(iii) arising out of any obligations of the Wellgate Parties required to be
performed on or after the date hereof under this Agreement or any other
agreements or documents entered into by the Wellgate Parties as contemplated
by the Closing Memorandum.
(ii) The Wellgate Parties, for themselves and their respective
heirs, administrators, successors and assigns, hereby irrevocably and
unconditionally release and forever discharge each of the Deere Park Parties of
and from any and all claims for, and agree not to file any lawsuit or other
legal action seeking to recover, any Losses or Expenses relating to or arising
out of any matters existing or occurring prior to the date hereof; provided,
however, that the foregoing release shall in no event extend to any claims (i)
that may be asserted by any of the Wellgate Parties under applicable antifraud
laws, including without limitation Sections 10b-5 and Section 18 of the Exchange
Act or to (ii) arising out of any obligations of the Deere Park Parties required
to be performed on or after the date hereof under any this Agreement or any
other agreements or documents entered into by the Deere Park Parties as
contemplated by the Closing Memorandum.
(c) INDEMNIFICATION.
(i) The Wellgate Parties hereby jointly and severally agree
to indemnify and hold harmless each of the Deere Park Parties from and
against any and all Losses (as hereinafter defined) and Expenses (as
hereinafter defined) incurred or suffered by any of such parties in
connection with or arising from: (i) any breach by Wellgate, Marengere,
Matossian or Amyot or any of their representations, warranties or covenants
contained in Section 3(a) of this Agreement or in any of the other agreements
and documents contemplated by the Closing Memorandum; (ii) any Encumbrance on
the Management Option Shares previously contributed by Wellgate to Dominion
Park, the Wellgate DBC Shares transferred to Dominion Park pursuant to this
Agreement, or Wellgate's interest in Dominion Park; or (iii) any claim
brought by any interest holder in Wellgate or any other person or entity
arising from or relating to the contribution by Wellgate of the Management
Option Shares to Dominion Park, or the transfer of the Wellgate DBC Shares to
Dominion Park pursuant to this Agreement.
6
<PAGE>
(b) The Deere Park Parties hereby jointly and severally agree to
indemnify and hold harmless the Wellgate Parties from and against any and all
Losses (as hereinafter defined) and Expenses (as hereinafter defined)
incurred or suffered by any of such parties in connection with or arising
from: (i) any breach by the Deere Park Parties of any of their
representations, warranties or covenants contained in Section 4(a) of this
Agreement; or (ii) any Encumbrance on the American Eco Shares, other than
those restrictions contained in the Lock-Up and Escrow Agreement.
(d) As used herein:
(i) "LOSSES" shall mean any and all losses, costs,
obligations, liabilities, settlement payments, awards, judgments, fines,
policies, damages, expenses, deficiencies or other charges.
(ii) "EXPENSES" shall include all reasonable expenses
incurred by an indemnified party for court costs, legal fees, filing fees and
other professional fees.
6. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without regard to
conflict of law principles.
7. CAPTIONS. Captions to paragraphs herein are for purposes of
reference only and in no way shall limit, define or otherwise affect the
provisions hereof.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
9. ENTIRE AGREEMENT. This Agreement represents the final and complete
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings of the parties, oral or
written, with respect thereto. This Agreement may be amended only by written
agreement signed by each of the parties hereto.
10. ADDITIONAL ACTIONS. The parties hereto hereby agree to prepare, sign
and deliver, or cause to be prepared, signed or delivered, such other and
further instruments and documents, and to perform such other and further acts as
may be reasonably necessary to carry out the intent of this Agreement and
consummate the transactions described herein.
11. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors, permitted
assigns, heirs and legal representatives.
7
<PAGE>
12. ASSIGNMENT. This Agreement may not be assigned by any party without
the written consent of the other parties hereto.
13. INCORPORATION OF RECITALS; EXHIBITS AND SCHEDULES. The recitals set
forth on Page 1 hereof and the exhibits and schedules attached hereto are hereby
incorporated into this Agreement by this reference.
8
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed as of the first
written above.
DOMINION PARK, L.L.C. WELLGATE INTERNATIONAL, LTD.
By: /s/ Michel Marengere By: /s/ Michel Marengere
------------------------------ ---------------------------------
Michel L. Marengere, Manager
Its: Chairman & C.E.O.
---------------------------------
By: /s/ Nicolas Matossian
------------------------------
Nicolas V. Matossian, Manager /s/ Michel Marengere
--------------------------------------
MICHEL L. MARENGERE
By: /s/ Gary I. Levenstein
------------------------------
Gary I. Levenstein, as /s/ Nicolas Matossian
Attorney-in-Fact for --------------------------------------
Douglas A. Gerrard, Manager NICOLAS V. MATOSSIAN
By: /s/ Gary I. Levenstein
------------------------------
Gary I. Levenstein, as /s/ R. Amyot
Attorney-in-Fact for --------------------------------------
Leonard Feldman, Manager RENE AMYOT
DEERE PARK EQUITIES, L.L.C., RIVERWOOD INVESTMENTS, L.L.C.,
an Illinois limited liability company a Delaware limited liability company
By: /s/ Gary I. Levenstein By: /s/ Gary I. Levenstein
-------------------------------- -----------------------------------
Gary I. Levenstein, as Gary I. Levenstein, as
Attorney-in-Fact for Attorney-in-Fact for
Douglas A. Gerrard, Douglas A. Gerrard, Manager
Manager
LAMAR INVESTMENTS, INC.
By /s/ Gary I. Levenstein
--------------------------------
Gary I. Levenstein, as
Attorney-in-Fact for
Leonard Feldman,
President
9
<PAGE>
EXHIBIT A
LETTER AGREEMENT
----------------
Attached hereto is a true and correct copy of the Letter Agreement dated August
19, 1997, as amended, which governs Dominion Park, L.L.C.
<PAGE>
EXHIBIT B
DOCUMENTATION REGARDING WELLGATE
--------------------------------
Attached hereto are true and correct copies of the Articles of Incorporation,
Bylaws, and a list of the current shareholders, directors and officers of
Wellgate.
<PAGE>
EXHIBIT C
RELEASES AND DISCHARGES
-----------------------
Attached hereto are copies of the Releases and Discharges.
<PAGE>
EXHIBIT D
---------
Attached hereto is a summary of all of DBC's unpaid tax and fiduciary
liabilities, and of all agreements DBC has reached regarding the payment of such
liabilities.
<PAGE>
EXHIBIT E
---------
Attached hereto is a description of all material adverse changes affecting DBC
or its subsidiaries since the date of DBC's most recent Quarterly Report on Form
10-Q, and a description of all transactions undertaken by DBC or any such
subsidiary since such date outside the normal course of business.
14
<PAGE>
ADMISSION AGREEMENT
THIS ADMISSION AGREEMENT (the "Agreement") is entered into as of the 16th
day of March, 1998, by and between DOMINION PARK, L.L.C., a Delaware limited
liability company ("Investor"), and Deere Park Equities, L.L.C., an Illinois
limited liability company ("Company").
RECITALS
WHEREAS, Company is governed by an Operating Agreement dated December 1,
1995 (the "Operating Agreement"); and
WHEREAS, that certain letter agreement (the "Letter Agreement") dated
August 19, 1997, as amended among Company, Michel L. Marengere and Nicolas V.
Matossian currently governs the operation of Investor; and
WHEREAS, Investor desires to become, and Company desires that Investor
become, a member of Company upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the recitals and mutual premises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined
herein shall have the meaning ascribed to such terms in the Operating Agreement
or the Letter Agreement, as the case may be.
2. ADMISSION OF INVESTOR. Upon Investor's payment of the capital
contribution set forth in paragraph 3, Investor shall be admitted to Company as
a Class C Member, and Investor agrees to be bound by all of the terms and
conditions of the Operating Agreement with respect to Class C Members, as
supplemented by this Agreement. Exhibit A to the Operating Agreement shall be
deemed amended to reflect the admission of and the capital contribution made by
Investor to Company.
3. CAPITAL CONTRIBUTION. Contemporaneously with the execution of
this Agreement, Investor shall make a contribution to the capital of Company in
the form of Two Million One Hundred Ten Thousand One Hundred (2,110,100) shares
of Class A Common Stock, $0.001 par value per share, of Dominion Bridge
Corporation (the "DBC Shares"). Withdrawals of the DBC Shares or substitutions
of cash or other securities for any or all of the DBC Shares may be made only
upon the consent of the Class A Member. The DBC Shares or any cash or other
securities substituted therefor shall be deemed capital of Company, for use in
its business and subject to the risks of its operations.
<PAGE>
4. ALLOCATIONS PURSUANT TO THE LETTER AGREEMENT AND SPECIAL
ALLOCATIONS OF PROFITS AND LOSSES.
(a) PAYMENT OF THE NOTE. Pursuant to the terms of the Letter
Agreement and the Note, the Management Option Shares continued to be
owned by Dominion Park will be applied to the payment of the Note, and in
the event the Management Option Shares are insufficient to provide for
payment in full of the Note, the Note shall be paid,
(i) first, with the Current Management Shares pledged as
collateral security for the Guaranty; and
(ii) then, to the extent of any remaining insufficiency,
with the Private Deere Park Shares and the Market Deere Park
Shares hereby being contributed to Deere Park.
(b) ALLOCATION OF GAIN ON MANAGEMENT OPTION SHARES. Any
Management Option Shares (or the proceeds thereof) not used to pay the
Note will continue to be allocated in accordance with the terms of the
Letter Agreement (i.e., 30% to Deere Park and 70% to the Executive
Stockholders).
(c) ALLOCATION OF GAIN OR PRIVATE DEERE PARK SHARES. Any
Private Deere Park Shares and Market Deere Park Shares (or the proceeds
thereof) not used to pay the Note will be allocated to Investor and it is
understood that Investor shall allocate such Shares or proceeds in
accordance with the terms of the Letter Agreement (i.e., 60% to Deere
Park and 40% to the Executive Stockholders).
(d) IN-KIND DISTRIBUTIONS. In the event of the termination and
liquidation of Investor, subject to repayment of the Note, Investor shall
withdraw as a member of Company and the DBC Shares, other than those used
to pay the Note or otherwise disposed of in accordance with the terms of
the Letter Agreement shall be distributed "in kind" to Investor.
(e) Any Net Losses of Company resulting from the DBC Shares
shall be allocated one hundred percent (100%) to Investor.
(f) NO PREFERENCE RETURN. Notwithstanding anything to the
contrary in the Operating Agreement, Investor hereby acknowledges and
agrees that it will not be entitled to any Preference Return or have any
interest in profits or losses derived from any activities or investments
of Company other than as described herein.
5. RIGHTS WITH RESPECT TO THE DBC SHARES. Investor hereby
acknowledges that Company shall have all rights with respect to the DBC Shares
and that Investor's only interest in such stock is as a member of Company;
provided, however, that the provisions of the Letter Agreement shall continue to
govern (a) the voting of the proxies for the DBC Shares and (b) the
-2-
<PAGE>
disposition of the Newco Shares under any circumstances other than an uncured
default under the Note or the termination of Investor.
6. ENTIRE AGREEMENT. This Agreement and the Operating Agreement
together contain the entire agreement and understanding of the parties with
respect to the subject matter hereof, and no representations, promises,
agreements or understandings regarding the subject matter hereof shall be of any
force or effect unless in writing, executed by the parties and dated subsequent
to the date hereof. In the event of any conflict between the provisions of this
Agreement and the Operating Agreement, the provisions of this Agreement shall
control.
7. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois without regard to conflict
of law principles thereof.
8. SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, the remainder nevertheless shall remain in full force
and effect. If any provision is held invalid or unenforceable with respect to
particular circumstances, it nevertheless shall remain in full force and effect
in all other circumstances.
9. MODIFICATIONS AND WAIVERS. No change, modification or waiver of
any provision of this Agreement shall be valid or binding unless it is in
writing dated subsequent to the date hereof and signed by the party intended to
be bound. No waiver of any breach, term or condition of this Agreement by
either party shall constitute a subsequent waiver of the same or any other
breach, term or condition.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
DOMINION PARK, L.L.C., DEERE PARK EQUITIES, L.L.C.,
a Delaware limited liability company an Illinois limited liability company
By: /s/ Michel L. Marengere By: /s/ Douglas A. Gerrard
------------------------------- ---------------------------------
Michel L. Marengere, Manager Doug Gerrard, Member-Manager
By: /s/ Nicolas V. Matossian
-------------------------------
Nicolas V. Matossian, Manager
By: /s/ Douglas A. Gerrard
-------------------------------
Doug Gerrard, Manager
By: /s/ Leonard Feldman
-------------------------------
Leonard Feldman, Manager
-4-
<PAGE>
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
AMONG
LAMAR INVESTMENTS, INC., AS LENDER,
AND
WELLGATE INTERNATIONAL LTD.,
AS LENDER
GROUPE CEDAR CANADA INC./CEDAR GROUP CANADA INC.
BORROWER
DOMINION BRIDGE CORPORATION
PARENT
AND
DOMINION BRIDGE, INC.
STEEN CONTRACTORS LIMITED
INDUSTRIES DAVIE INC./DAVIE INDUSTRIES INC.
CEDAR GROUP AUSTRALIA PTY LIMITED
LES ENTREPRENEURS BECKER INC./BECKER CONTRACTORS INC.
BECKER CONTRACTORS LIMITED
MIL INTERMODAL INC.
SUBSIDIARY GUARANTORS
DATED AS OF APRIL 6, 1998
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . 11
SECTION 2. CREDIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 Revolving Credit Commitment . . . . . . . . . . . . . . . . . 12
2.2 Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.3. Procedure for Revolving Credit Borrowing. . . . . . . . . . . 12
2.4 Termination of Revolving Credit Commitment. . . . . . . . . . 13
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS . . . . . . . . . . . 13
3.1 Interest Rates and Payment Dates. . . . . . . . . . . . . . . 13
3.2 Mandatory Repayments. . . . . . . . . . . . . . . . . . . . . 14
3.3 Computation of Interest . . . . . . . . . . . . . . . . . . . 14
3.4 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.6 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.7 Convertibility. . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 16
4.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . 16
4.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.3 Power, Authorization; Enforceable Obligations . . . . . . . . 17
4.4 No Legal Bar. . . . . . . . . . . . . . . . . . . . . . . . . 17
4.5 No Breach or Misrepresentation in BNY Agreement;
Delivery to Lamar. . . . . . . . . . . . . . . . . . . . . 17
4.6 Security Documents. . . . . . . . . . . . . . . . . . . . . . 18
4.7 Accuracy and Completeness of Information. . . . . . . . . . . 18
4.8 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.9 Purpose of Loans. . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . 19
5.1. Conditions to Initial Revolving Credit Loans . . . . . . . . 19
5.2 Conditions to Each Subsequent Revolving Credit Loan . . . . . 24
SECTION 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . 25
6.1 Financial Statements; Compliance Certificates; Other
Information . . . . . . . . . . . . . . . . . . . . . . . 25
6.2 Compliance with Agreements. . . . . . . . . . . . . . . . . . 25
6.3 Compliance with BNY Credit Agreement. . . . . . . . . . . . . 25
6.4 Additional Collateral; Additional Guarantors . . . . . . . . 25
SECTION 7. REGARDING THE BNY CREDIT AGREEMENT . . . . . . . . . . . . . 26
7.1 Subsequent Amendment of the BNY Credit Agreement. . . . . . . 26
7.2 Notice of Amendment . . . . . . . . . . . . . . . . . . . . . 26
SECTION 8. EVENTS OF DEFAUT . . . . . . . . . . . . . . . . . . . . . 26
8.1 Events of Default; Remedies . . . . . . . . . . . . . . . . . 26
8.2 Application of Proceeds . . . . . . . . . . . . . . . . . . . 30
8.3 Receipt of Collateral . . . . . . . . . . . . . . . . . . . . 31
<PAGE>
SECTION 9. AGREEMENT AMONG LENDERS . . . . . . . . . . . . . . . . . . . 32
9.1 Pro Rata Obligations. . . . . . . . . . . . . . . . . . . . . 32
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 32
10.1 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . 32
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . . 34
10.4 Survival of Representations and Warranties. . . . . . . . . . 34
10.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . 34
10.6 Successors and Assigns. . . . . . . . . . . . . . . . . . . . 35
10.7 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.8 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 37
10.9 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 37
10.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . 37
10.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 37
10.12 Submission to Jurisdiction; Waivers . . . . . . . . . . . . . 37
10.13 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . 38
10.14 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 39
10.15 Formal Date . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.16 Currency Conversion . . . . . . . . . . . . . . . . . . . . . 39
10.17 Language. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Schedules:
Schedule I Permitted Liens
Schedule II Schedule of Real Property
Schedule 4.1(b) Borrower Projections
Schedule 4.2 Material Changes
Schedule 4.5 Exceptions to Representations and Warranties
under the BNY Credit Agreement
Schedule 4.6 Jurisdictions for Perfection of Security
Interests
Schedule 9(k) Listing of Directors of Parent
Schedules from BNY Credit Agreement
Exhibits:
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Term Note
Exhibit C Form of Warrant
</TABLE>
-ii-
<PAGE>
CREDIT AGREEMENT, dated as of April 6, 1998 as same may be amended,
modified, supplemented, restated or replaced ("AGREEMENT"), among Lamar
Investments, Inc., an Illinois corporation ("LAMAR"), Wellgate
International Ltd., a British Virgin Island corporation ("WELLGATE"),
Lamar and Wellgate as Lenders under this Agreement ("LENDERS"), Groupe
Cedar Canada Inc./Cedar Group Canada Inc., a Canadian corporation (the
"BORROWER"), Dominion Bridge Corporation, a Delaware corporation (the
"PARENT"), Dominion Bridge, Inc., a Canadian corporation ("DBI"), Steen
Contractors Limited, an Ontario corporation ("STEEN"), Industries Davie
Inc./Davie Industries Inc., a Canadian corporation ("DAVIE"), Cedar Group
Australia Pty Limited, an Australian corporation ("CGA"), Les
Entrepreneurs Becker Inc./Becker Contractors Inc., a Quebec corporation
("BECKER"), Becker Contractors Limited, a Newfoundland corporation
("BECKER NFLD") and MIL Intermodal Inc., a Canadian corporation ("MIL").
RECITALS
A. The Borrower has requested that the Lenders make available to
the Borrower credit accommodations in an aggregate principal amount at any
one time outstanding not to exceed $14,800,000, the proceeds of which will
be used to finance the payments owing to Wellgate under the Settlement,
Release and Discharge Agreements between the Parent and Messrs. Marengere,
Matossian and Amyot, (the "Settlement Obligations"), to repay certain
outstanding tax obligations owed to Revenue Canada and to finance working
capital requirements of the Borrower and DBI, Steen and Davie in the
ordinary course of business and to pay fees and expenses incurred in
connection herewith.
B. The Borrower is the "Borrower" under a Credit Agreement dated
September 26, 1997 among it, BNY Financial Corporation--Canada and certain
other Lenders from time to time parties thereto, the Parent and the
Subsidiary Guarantors (the "BNY Credit Agreement"). Certain provisions of
this Agreement make reference to the BNY Credit Agreement.
C. The Lenders are willing to make credit accommodations to the
Borrower, but only on the terms, and subject to the conditions, set forth
in this Agreement.
AGREEMENT
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. The following definitions shall apply to this
Agreement:
"ACCOUNTS": as to any Person, all of the accounts, contract rights,
instruments, documents, chattel paper, general intangibles relating to
accounts, drafts and acceptances, and all other forms of obligations owing
to such Person, arising out of or in connection
<PAGE>
with the sale or lease of Inventory or the rendition of services, and all
guarantees and other security therefor, whether secured or unsecured, now
existing or hereafter created, and whether or not specifically pledged or
hypothecated to the Lender hereunder or pursuant to any of the other Loan
Documents.
"AFFILIATE": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control
with, such Person, but excluding any Person other than the Parent which is
in control of or is controlled by any director or officer of the Parent
and which is not a Loan Party. For purposes of this definition, "control"
of a Person (including, with its correlative meanings, "CONTROLLED BY" and
"under common control with") means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise. Affiliate shall not include Unimetric Corporation.
"AGENT": the Agent to be appointed by the Lenders pursuant to the
Sharing Agreement.
"AGREEMENT": as defined in the title paragraph hereof.
"AUSTRALIAN SECURITY DOCUMENTS": the collective reference to:
(a) the Deed of Charge between CGA and the Lender creating a
fixed and floating charge on all assets of CGA; and
(b) the Equitable Share Mortgages.
"AVAILABLE RCCOMMITMENT": at any time, an amount equal to the
excess, if any, of (a) the amount of the Revolving Credit Commitment which
is available for borrowing at such time over (b) the unpaid principal
amount of all Revolving Credit Loans made by Lamar then outstanding.
"BECKER": as defined in the title paragraph of this Agreement.
"BECKER NFLD": as defined in the title paragraph of this Agreement.
"BNY CREDIT AGREEMENT": as defined in Recital B of this Agreement.
"BNY CANADA": BNY Financial Corporation--Canada, an Ontario
corporation.
"BORROWER": as defined in the title paragraph of this Agreement.
"BORROWER DEBENTURE": the Fixed and Floating Charge Demand Debenture
issued by the Borrower in favor of the Lenders, creating a mortgage,
pledge and charge on the
-2-
<PAGE>
property of the Borrower, as the same may be amended, supplemented, restated,
replaced or otherwise modified from time to time.
"BORROWER MOVABLE HYPOTHEC": the Hypothec on Movable Property
(General) granted by the Borrower in favor of the Lenders, creating a
hypothec on, and a security interest in, a universality of all present and
future movable property owned by the Borrower in the Capital Stock of CGA,
Davie, DBI and Steen owned by the Borrower, as the same may be amended,
supplemented, restated, replaced or otherwise modified from time to time;
and in the MDC Stock beneficially owned by the Borrower through CGA or
otherwise owned or held by CGA and/or to which the Borrower has an
equitable title, as the same may be amended, supplemented, restated,
replaced or otherwise modified from time to time.
"BORROWER PLEDGE OF DEBENTURE": the Pledge Agreement entered into by
the Borrower in favor of the Lenders pursuant to which the Borrower
pledges and hypothecates the Borrower Debenture to the Lenders, as the
same may be amended, supplemented, restated, replaced or otherwise
modified from time to time.
"BORROWER SECURITY DOCUMENTS": the collective reference to the
Borrower Debenture, the Borrower Pledge of Debenture, the Borrower
Hypothecs and the Borrower Equitable Share Mortgage.
"BORROWING DATE": any Business Day specified in a notice pursuant to
Section 2.3 as a date on which the Borrower requests Lamar to make
Revolving Credit Loans hereunder.
"BUSINESS DAY": a day other than a Saturday, Sunday or other day on
which commercial banks in Chicago, Illinois are authorized or required by
law to close.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all similar ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"CGA": as defined in the title paragraph of this Agreement.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all property and interests in property of the Loan
Parties, now owned or hereinafter acquired, upon which a Lien is purported
to be created by any Security Document including, without limitation, all
Accounts, Inventory, Equipment, Real Property, general intangibles
(including, but not limited to, licenses, trade marks, trade-names,
patents, copyrights, contract rights, instruments, documents, chattel
paper, corporate and other business records, designs, manufacturing
procedures, goodwill, customer lists, computer programs, claims under
guarantees, security interests, hypothecs
-3-
<PAGE>
and other security held to secure payment of any accounts, all rights of
indemnification and all other intangible property of every kind and nature)
and all securities and shares in the capital stock of any Person (including,
but not limited to, the MDC Stock).
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CREDIT PARTIES": the Borrower and each of the Subsidiary
Guarantors.
"DAVIE": as defined in the title paragraph of this Agreement.
"DBI": as defined in the title paragraph of this Agreement.
"DEFAULT": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"DOLLARS" AND "$": dollars in lawful currency of the United States
of America.
"EQUIPMENT": with respect to any Person, all of the equipment,
machinery and goods (excluding Inventory) of such Person, wherever located
whether now owned or hereafter acquired, including without limitation, all
apparatus, motor vehicles, fittings, furniture, furnishings, fixtures,
parts, accessories and all replacements and substitutions therefor or
accessions thereto, that may properly be classified as a capital asset in
accordance with GAAP, consistently applied.
"EQUITABLE SHARE MORTGAGES": the collective reference to:
(a) the Equitable Share Mortgage between CGA and the Lenders
creating a mortgage on the MDC Stock owned by CGA; and
(b) the Borrower Movable Hypothec, as it relates to the MDC
Stock.
"EVENT OF DEFAULT": any of the events specified in Section 8;
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"FINANCING LEASE": any lease of property, real or personal,
immovable or movable, the obligations of the lessee in respect of which
are required in accordance with GAAP to be capitalized on a balance sheet
of the lessee.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
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"GOVERNING DOCUMENTS": as to any Person, its articles and
certificate of incorporation and by laws, its partnership agreement, its
certificate of formation and operating agreement, and/or the other
organizational or governing documents of such Person.
"GOVERNMENTAL AUTHORITY": any nation or government, any state,
province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"GUARANTEE OBLIGATION": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counter indemnity or similar obligation in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "PRIMARY OBLIGATIONS") of any other third Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to 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 (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall
have a correlative meaning. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"GUARANTEES": the collective reference to the Parent Guarantee and
the Subsidiary Guarantees.
"GUARANTOR": any Person executing and delivering a Guarantee
pursuant to this Agreement.
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"HYPOTHECATED SECURITIES": the collective reference to the Capital
Stock hypothecated under each of the Parent Movable Hypothec, the Borrower
Movable Hypothec and the Subsidiaries Movable Hypothec and under any other
Security Documents hereafter executed as well as the MDC Stock charged
pursuant to the Equitable Share Mortgages.
"HYPOTHECS": the collective reference to the Borrower Hypothecs, the
Subsidiary Hypothecs and the Parent Movable Hypothec.
"INDEBTEDNESS": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money (whether by loan or the
issuance and sale of debt securities) or for the deferred purchase price
of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person in
respect of letters of credit, acceptances or similar instruments issued or
created for the account of such Person and (e) all liabilities secured by
any Lien on any property owned by such Person even though such Person has
not assumed or otherwise become liable for the payment thereof.
"INSOLVENT": pertaining to a condition of insolvency.
"INTERCREDITOR AGREEMENT": is defined in Section 5.1(q).
"INTEREST PAYMENT DATE": as to any Revolving Credit Loan and the
Term Loan, the last day of each month, commencing April 30, 1998.
"INVENTORY": with respect to any Person, all now owned or hereafter
acquired inventory, wherever located, including any such inventory which
is in transit, as would be reflected on the financial statements of such
Person in accordance with GAAP, and all documents of title or other
documents representing such property.
"LIEN": (a) any mortgage, pledge, hypothec (legal or conventional),
assignment, deposit arrangement, encumbrance, lien (statutory or other),
deemed trust or actual trust, privilege, right, prior claim, charge, right
of retention or other security interest or any preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever, whether choate or inchoate, whether or not crystallized or
fixed, whether for amounts due or accruing due (including, without
limitation, any conditional sale, installment sale or other title
retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing), any seizure or attachment
(unless such seizure or attachment is released and discharged within 10
days thereof or is contested in good faith and the Lender has been
furnished with complete security in form, substance and amount acceptable
to it against all loss and damages which it might suffer by reason
thereof), and the filing of any financing statement or application for
registration under the Uniform Commercial Code or comparable law of any
jurisdiction in respect of
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any of the foregoing, and (b) to the extent not included in the foregoing,
any reservation, exception, encroachment, easement, right of way, servitude,
covenant, condition, restriction, title exception or other encumbrance
affecting property.
"LOAN DOCUMENTS": this Agreement, the Guarantees and the Security
Documents.
"LOAN PARTIES": the Borrower, the Parent and each Subsidiary
Guarantor which is a party to a Loan Document.
"LOANS": the Revolving Credit Loans and the Term Loan.
"MATERIAL ADVERSE EFFECT": a material adverse effect, as determined
in the sole and absolute discretion of the Lenders, on (a) the business,
operations, property, condition (financial or otherwise) or prospects of
the Loan Parties taken as a whole or (b) the validity or enforceability of
this or any of the other Loan Documents or the rights or remedies of the
Lenders hereunder or thereunder.
"MDC": McConnell Dowell Corporation Limited.
"MDC STOCK": the Capital Stock of MDC.
"MDC STOCK VALUE": as of any date of determination, the value of the
MDC Stock based upon the closing price on the immediately preceding
trading date.
"MIL": as defined in the title paragraph of this Agreement.
"MORTGAGE": a security document entered into by a Loan Party in
favor of the Lenders creating a Lien on real or immovable property owned
by such Loan Party.
"NON GUARANTOR SUBSIDIARY": a Subsidiary which is not a Guarantor
Subsidiary.
"NOTES": the Revolving Credit Note and the Term Note.
"OBLIGATIONS": the unpaid principal amount of, and interest
(including, without limitation, interest accruing after the maturity of
the Revolving Credit Loans and the Term Loan and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post filing or post petition interest is
allowed in such proceeding) on the Revolving Credit Loans and the Term
Loan, and all other obligations and liabilities of the Loan Parties to the
Lenders, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
or out of or in connection with this Agreement, the Guarantees, the
Security Documents and any other Loan Documents and any other document
made, delivered or given in connection therewith or herewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without
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limitation, all fees and disbursements of counsel to the Lenders that are
required to be paid by a Loan Party pursuant to the terms of the Loan
Documents and the fees and expenses of the Agent) or otherwise.
"PARENT": as defined in the title paragraph of this Agreement.
"PARENT GUARANTEE": the Guarantee by the Parent in favor of the
Lenders, guaranteeing the Obligations, as the same may be amended,
supplemented, restated, replaced or otherwise modified from time to time.
"PARENT MOVABLE HYPOTHEC": the Hypothec on Movable Property
(General) granted by the Parent in favor of the Lenders, creating a
hypothec on, and security interest in, a universality of all present and
future movable property owned by the Parent, including all Capital Stock
owned by the Parent including, without limitation, the Capital Stock of
the Borrower owned by the Parent, as same may be amended, supplemented,
restated, replaced or otherwise modified from time to time.
"PERMITTED LIENS": the Liens listed on Schedule I hereto.
"PERSON": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"PLAN": any pension or other employee benefit plan and which
maintained by a Loan Party or any Related Company; (b) a plan to which a
Loan Party or any Related Company contributes or is required to
contribute; (c) a plan to which a Loan Party or any Related Company was
required to make contributions at any time during the five (5) calendar
years preceding the date of this Agreement; or (d) any other plan with
respect to which a Loan Party or any Related Company has incurred or may
incur liability, including contingent liability, either to such plan or to
any person, administrator or Public Authority.
"PROPERTIES": is defined in the BNY Credit Agreement.
"PUBLIC AUTHORITY": the government of any country or sovereign
state, or of any state, province, municipality, or other political
subdivision thereof, or any department, agency, public corporation,
commission, tribunal, committee, board or other instrumentality of any of
the foregoing and includes, without limitation, any pension board.
"REAL PROPERTY": the real or immovable properties owned by any of
the Loan Parties and located at the locations listed in SCHEDULE II as
well as such other real or immovable properties which may at any time be
purchased or otherwise acquired by any of the Loans Parties.
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"REGISTER": as defined in Section 10.6(c).
"RELATED COMPANY": any corporation "related" to a Loan Party within
the meaning of the Income Tax Act of Canada, any member of any controlled
group of corporations of which any of the Loan Parties is a part, or any
trade or business (whether or not incorporated) which together with a Loan
Party would be treated as a single employer.
"REQUIREMENT OF LAW": as to any Person, the certificate and articles
of incorporation and by laws or other organizational or Governing
Documents of such Person, and any law, treaty, order, rule, regulation,
judgment 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.
"RESPONSIBLE OFFICER": the chief executive officer or the president
of the relevant Loan Party or, with respect to financial matters, the
chief financial officer of the relevant Loan Party.
"REVOLVING CREDIT CLOSING DATE": the date the conditions set forth
in Section 5.1 have been satisfied.
"REVOLVING CREDIT COMMITMENT": the agreement of Lamar to make
Revolving Credit Loans to the Borrower in an aggregate amount at any one
time outstanding not to exceed $10,000,000 in accordance with the
provisions of this Agreement.
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and including
the Revolving Credit Closing Date to but not including the Termination
Date, unless the Revolving Credit Commitment has terminated prior to such
date as a result of the occurrence of any of the events set forth in
Section 2.4.
"REVOLVING CREDIT LOANS": as defined in Section 2.1.
"REVOLVING CREDIT NOTE": the revolving credit note dated the date of
issuance thereof in an aggregate principal amount of up to $10,000,000,
evidencing the Revolving Credit Loans, in substantially the form of
Exhibit A attached hereto.
"SECURITY DOCUMENTS": the collective reference to the Parent Movable
Hypothec, the Borrower Security Documents and the Subsidiary Security
Documents and all other security documents hereafter delivered to the
Lenders granting a Lien on any asset or assets of any Person to secure any
of the Obligations or to secure any guarantee of any such Obligations.
"SHARING AGREEMENT": The Agency and Sharing Agreement dated as of
April 27, 1998 among the Lenders and the Agent.
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"STEEN": as defined in the title paragraph of this Agreement.
"SUBSIDIARY": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"SUBSIDIARY DEBENTURES": each Fixed and Floating Charge Demand
Debenture issued by a Guarantor Subsidiary in favor of the Lenders,
creating a mortgage, pledge and charge on the property of the Guarantor
Subsidiary, as the same may be amended, supplemented, restated, replaced
or otherwise modified from time to time.
"SUBSIDIARY GUARANTEES": the collective reference to each Guarantee
by a Guarantor Subsidiary in favor of the Lenders, guaranteeing the
Obligations, as the same may be amended, supplemented, restated, replaced
or otherwise modified from time to time.
"SUBSIDIARY GUARANTORS": the collective reference to DBI, Steen,
Davie, CGA, Becker, Becker NFLD, MIL, and any other Subsidiary which may
at any time execute and deliver a Subsidiary Guarantee.
"SUBSIDIARY HYPOTHECS": the collective reference to the Subsidiary
Immovable Hypothecs and the Subsidiary Movable Hypothecs.
"SUBSIDIARY IMMOVABLE HYPOTHECS": the collective reference to each
Hypothec on Immovable(s), Leases, Rents and Insurance granted by a
Guarantor Subsidiary in favor of the Lenders, creating a hypothec on, and
security interest in, the charged property described therein, as the same
may be amended, supplemented, restated, replaced or modified from time to
time;
"SUBSIDIARY MOVABLE HYPOTHECS": the collective reference to each
Hypothec on Movable Property granted by a Guarantor Subsidiary in favor of
the Lenders, creating a hypothec on, and security interest in, a
universality of all present and future movable property owned by a
Guarantor Subsidiary, including the Capital Stock owned by Davie
including, without limitation, the Capital Stock of MIL owned by Davie and
the Capital Stock owned by Steen including, without limitation, the
Capital Stock of Becker and Becker NFLD owned by Steen, as the same may be
amended, supplemented, restated, replaced or modified from time to time.
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"SUBSIDIARY PLEDGES OF DEBENTURE": each Pledge Agreement entered
into by a Guarantor Subsidiary in favor of the Lenders pursuant to which
the Guarantor Subsidiary pledges and hypothecates the Subsidiary Debenture
to the Lenders, as the same may be amended, supplemented, restated,
replaced or otherwise modified from time to time.
"SUBSIDIARY SECURITY DOCUMENTS": the collective reference to the
Subsidiary Debentures, the Subsidiary Pledges of Debenture, the Subsidiary
Hypothecs and the Australian Security Documents.
"TERMINATION DATE": means September 30, 1999.
"TERMINATION EVENT": with respect to any Plan, (a) the withdrawal of
a Loan Party or any Related Company from a Plan during a plan year; or (b)
the treatment of a Plan amendment as a termination; or (c) the institution
of a proceeding by any Public Authority to terminate or to have a trustee
appointed to administer a Plan; or (d) any other event or condition which
might constitute grounds for termination of, winding up, in whole or in
part, or the appointment of a trustee to administer any Plan.
"TERM LOAN": the term loan in the aggregate original principal
amount of $4,800,000 to be made by Wellgate to the Borrower pursuant to
Section 2.2.
"TERM NOTE": the term note dated the date of issuance thereof in the
aggregate original principal amount of $4,800,000, evidencing the Term
Loan, substantially in the form of Exhibit B attached hereto.
"TRANSFEREE": as defined in Section 10.6(d).
1.2 OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the
Loan Parties and the Non Guarantor Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to
them under GAAP.
(c) Certain terms used in this Agreement in connection with the
BNY Credit Agreement are defined in the BNY Credit Agreement.
Capitalized terms used in this Agreement and not otherwise defined
shall have the meaning provided in the BNY Credit Agreement. Any
capitalized term defined in the BNY Credit Agreement and used herein
shall be interpreted to apply to this Agreement as if set forth
herein in respect of the terms and provisions hereof.
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(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. CREDIT
2.1 REVOLVING CREDIT COMMITMENT. Provided there does not then exist
an Event of Default or a Default, and subject to the terms and conditions
hereof, Lamar, in its sole and absolute discretion, may make advances to
Borrower on a revolving credit basis ("REVOLVING CREDIT LOANS") during the
Revolving Credit Commitment Period in an aggregate principal amount of
Revolving Credit Loans at any one time outstanding not to exceed the
amount of the Revolving Credit Commitment then in effect. During the
Revolving Credit Commitment Period, the Borrower may use the Revolving
Credit Commitment by borrowing, repaying the Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans shall be evidenced by the
Revolving Credit Note.
2.2 TERM LOAN. Wellgate agrees, on the date of issuance of the Term
Note, to extend loans to Borrower in the aggregate principal amount of
Four Million Eight Hundred Thousand Dollars ($4,800,000) (the "TERM
LOAN"). The Term Loan shall be evidenced by the Term Note dated the date
hereof and shall be payable in full on the Termination Date, at which time
the Borrower shall repay the Term Loan together with all accrued interest
thereon, and all other Obligations, failing which payment, Wellgate may
exercise, subject to the terms and conditions of this Agreement, the
Intercreditor Agreement and the Sharing Agreement, all of its rights and
remedies hereunder, under the Security Documents or at law. Payments of
principal on the Term Loan may not be reborrowed.
2.3 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may borrow
under the Revolving Credit Commitment during the Revolving Credit Commitment
Period on any Business Day in an aggregate principal amount not exceeding the
aggregate Available RCCommitment then in effect, provided that the Borrower
shall give Lamar irrevocable notice (which notice must be received by the
Lender prior to 10:00 a.m., Chicago time) on the requested Borrowing Date,
specifying the amount to be borrowed and the requested Borrowing Date. Each
borrowing under the Revolving Credit Commitment will be made available to the
Borrower by Lamar on the applicable Borrowing Date to such account(s) as
Borrower may, from time to time, designate to Lamar in writing. The
Revolving Loans shall be repayable in full on the Termination Date.
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2.4 TERMINATION OF REVOLVING CREDIT COMMITMENT. Subject to the
rights of termination provided herein below, the Revolving Credit Loans
shall be for a term of eighteen months ending on the Termination Date, at
which time the Borrower shall repay the Revolving Credit Loans together
with all accrued interest thereon, and all other Obligations, failing
which payment, Lamar may exercise, subject to the terms and conditions of
this Agreement, the Intercreditor Agreement and the Sharing Agreement, all
of its rights and remedies hereunder, under the Security Documents or at
law. Notwithstanding the foregoing, the Revolving Credit Commitment may
be terminated prior to the Termination Date as a result of the occurrence
of any one of the following events and as follows:
(a) The Borrower may terminate this Agreement at any other time
upon 60 days' prior written notice, provided that the Borrower repays
all of the Obligations.
(b) Lamar may terminate the Revolving Credit Commitment at any
time upon the occurrence of an Event of Default in accordance with
Section 8.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS
3.1 INTEREST RATES AND PAYMENT DATES.
(a) Each Revolving Credit Loan and the Term Loan shall bear
interest at a rate per annum equal to 11.5%.
(b) If all or a portion of (i) any principal of any Revolving
Credit Loan or the Term Loan, (ii) any interest payable thereon, or
(iii) any other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), the
principal of the Revolving Credit Loans and the Term Loan and any
such overdue interest or other amount, to the extent permitted by
law, shall bear interest at a rate of 12% per annum from the date of
such non payment until such overdue principal, interest or other
amount is paid in full (as well after as before judgment).
(c) Interest shall be payable monthly in arrears on each
Interest Payment Date, provided that interest accruing pursuant to
paragraph (b) of this Section shall be payable from time to time on
demand.
(d) If on five or more Business Days (whether or not
consecutive) occurring in any calendar month the amount of Revolving
Credit Loans outstanding on each such Business Day exceeds the
Revolving Credit Commitment as in effect for each such Business Day,
then the average daily balance of all Revolving Credit Loans
outstanding on each day during such month shall bear interest at a
rate of 12% per annum. The foregoing will apply whether the excess
results from the permission granted by Lamar or for any other reason.
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3.2 MANDATORY REPAYMENTS.
(a) If on any date the aggregate outstanding principal amount
of the Revolving Credit Loans exceeds the Revolving Credit
Commitment, the Borrower shall immediately repay the Revolving Credit
Loans in an amount equal to the amount of such excess.
(b) The Borrower shall repay the Revolving Credit Loans, the
Term Loan and all other Obligations on the Termination Date, subject
to any early termination events set forth in Section 2.4.
3.3 COMPUTATION OF INTEREST.
(a) Unless otherwise stated, wherever in this Agreement,
reference is made to a rate of interest "per annum" or a similar
expression is used, such interest shall be calculated on the basis of
a 360-day year for the actual number of days elapsed in the period,
and, in any such case, using the nominal rate method of calculation
(and not the effective rate method of calculation or any other method
that contemplates deemed reinvestment of interest). All payments of
interest to be made hereunder will be paid both before and after
maturity and before and after default and/or judgment, if any, until
payment thereof, and interest will accrue on overdue interest, if
any.
(b) For the purposes of this Agreement, whenever interest, fees
or other amounts referred to hereunder are to be calculated on the
basis of a year of 360 days or any other period of time that is less
than a calendar year, the yearly rate of interest to which the rate
determined pursuant to such calculation is equivalent is the rate so
determined multiplied by the actual number of days in the calendar
year in which the same is to be determined and divided by 360.
3.4 PAYMENTS. All payments (including prepayments) to be made by
the Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without abatement, compensation, set-off or
counterclaim and shall be made prior to 12:00 noon, Chicago time, on the
due date thereof to the Agent for Lamar with respect to the Revolving
Loans and for Wellgate with respect to the Term Loan, pursuant to the
terms of the Sharing Agreement, in Dollars and in immediately available
funds. If any payment hereunder becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension.
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3.5 TAXES.
(a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld
or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on
the Lenders as a result of a present or former connection between the
Lenders and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from a Lender
having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement). If any such
non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("NON-EXCLUDED TAXES") are required to be
withheld from any amounts payable to any Lender, the amounts so
payable to the Lenders shall be increased to the extent necessary to
yield to the Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Agreement. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Lenders a
certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Lenders the required receipts or other required
documentary evidence, the Borrower shall indemnify the Lenders for
any incremental taxes, interest or penalties that may become payable
by any Lender as a result of any such failure. In the event that the
Lender receives or is granted a credit against or relief, deduction
or omission for, or repayment of, any tax paid or payable by the
Lender in respect of or calculated with reference to the deduction or
withholding giving rise to an additional payment under this Section,
then the Lender to the extent that it can do so without prejudice to
the retention of the amount of such credit, relief, deduction,
omission or repayment, shall pay or cause to be paid to the Borrower
such amount that the Lender shall have reasonably concluded to be
attributable to the relevant deduction or withholding. Nothing
herein contained shall interfere with each Lender's rights to arrange
its respective tax affairs in whatever manner it may think fit. In
particular, no Lender shall be under any obligation to claim credit,
relief, remission or repayment from or against its corporate profits
or similar tax liability in respect of the amount of such deduction
or withholding in priority to any other claims, relief's, credits, or
deductions available to such Lender.
(b) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
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3.6 INDEMNITY. The Borrower agrees to indemnify the Lenders and to
hold the Lenders harmless from any loss or reasonable expense which the
Lenders may sustain or incur as a consequence of default by the Borrower
in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement. This covenant shall
survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
3.7 CONVERTIBILITY. Each Note shall provide for the conversion, at
the option of the holder thereof, of all or any part of the unpaid
principal balance thereof and/or accrued and unpaid interest thereon into
shares of Common Stock of the Parent from and after the issuance of the
Note and prior to repayment thereof at a conversion rate of $2.60 per
share of Common Stock.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Loans, the Borrower hereby represents and warrants to the Lenders that:
4.1 FINANCIAL CONDITION.
(a) The consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at September 30, 1997 and the related
consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by Deloitte & Touche, and all
financial statements required to be delivered to BNY Canada pursuant
to the terms of the BNY Credit Agreement, all as certified in
accordance with the BNY Credit Agreement, have been furnished to
Lamar and are complete and correct and present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal period
then ended.
(b) The operating forecast and cash flow projections of the
Borrower and its consolidated Subsidiaries dated April, 1998 and
attached hereto as SCHEDULE 4.1(b), have been prepared in good faith
using assumptions deemed reasonable by the Borrower under the
direction of a Responsible Officer of the Borrower, and in accordance
with GAAP, except that such forecast and projections do not include
footnotes and other disclosures which may be required pursuant to
GAAP. The Borrower has no reason to believe that as of the date of
delivery thereof such operating forecast and cash flow projections
are materially incorrect or misleading in any material respect, or
omit to state any material fact which would render them misleading in
any material respect.
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4.2 NO CHANGE.
(a) Since December 31, 1997, there has been no development or
event which has had or could reasonably be expected to have a
Material Adverse Effect except as set forth in SCHEDULE 4.2; and
(b) During the period from December 31, 1997 to and including
the date hereof, no dividends or other distributions have been
declared, paid or made upon the Capital Stock of the Borrower nor has
any of the Capital Stock of the Borrower been redeemed, retired,
purchased or otherwise acquired for value by the Borrower or any of
its Subsidiaries, except for the redemption of the Parent's
Stockholder Rights Plan.
4.3 POWER; AUTHORIZATION: ENFORCEABLE OBLIGATIONS. Each Loan Party
has the corporate power and authority, and the legal right, to make,
deliver and perform its obligations under the Loan Documents to which it
is a party and, in the case of the Borrower, to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents, other than
consents which have been obtained and are in full force and effect. This
Agreement has been, and each other Loan Document will be, duly executed
and delivered on behalf of each Loan Party which is intended to become a
party thereto. This Agreement constitutes, and each other Loan Document
when executed and delivered will constitute a legal, valid and binding
obligation of each Loan Party which is a party to it enforceable against
such Loan Party in accordance with its terms, subject to the effects of
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) and an implied covenant of good faith and
fair dealing.
4.4 NO LEGAL BAR. The execution, delivery and performance of the
Loan Documents, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or Contractual Obligation
of any Loan Party and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation
(other than Liens created by the Security Documents in favor of the
Lenders).
4.5 NO BREACH OR MISREPRESENTATION IN BNY CREDIT AGREEMENT; DELIVERY
TO LAMAR. Except as disclosed on Schedule 4.5 or any other Schedule to
this Agreement, all of the Borrower's statements to the "Agent" and
"Lenders" under, and all representations, warranties and covenants of the
Borrower and the "Loan Parties" as the case may be in, the BNY Credit
Agreement and the "Loan Documents" referred to therein, in each case as
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in effect on the date hereof, are true, complete and correct and are
incorporated by reference herein, as if made to the Lenders herein on the
date hereof. Except as disclosed on Schedule 4.5, as of the date hereof,
there exists no "Default" or "Event of Default" under the BNY Credit
Agreement. This Agreement, the Revolving Credit Loans, the Term Loan, the
granting to the Lenders hereunder and under the Loan Documents referred to
herein of security interests in the assets of the Borrower and other Loan
Parties, the Guaranties and all other credit enhancements contemplated by the
Loan Documents are permitted by the BNY Credit Agreement. True and correct
copies of the original of all amendments to, waivers or consents relating to,
schedules to (whether original, modified or supplemental) and correspondence
relating to, the BNY Credit Agreement have been delivered to Lamar.
4.6 SECURITY DOCUMENTS.
(a) The provisions of each Security Document are effective to
create in favor of the Lenders a legal, valid and enforceable
security interest in all right, title and interest of the Loan Party
thereto in the "Collateral" described therein, subject only to
Permitted Liens;
(b) (i) When financing statements, Registrable copies of the
Security Documents, or when applications for registration in the
Register of Personal and Movable Real Rights, in the case of hypothec
affecting movable property, have been filed in the offices in the
jurisdictions listed in SCHEDULE 4.6, the Security Documents shall
each constitute a fully perfected or duly registered and recorded, as
the case may be, Lien and hypothec on and security interest in, all
right, title and interest of the Loan Party thereto in the Collateral
described therein, which can be perfected by such filing, subject
only to Permitted Liens;
(ii) and in the case of any Subsidiaries of the Borrower
that are organized and existing under the laws of Australia, Canada or
any province thereof, certified extracts of resolutions of the directors
of the corporation issuing any Hypothecated Securities duly authorizing
the hypothecation or mortgage thereof and any transfer upon any
realization upon the security, the Movable Hypothecs and the Equitable
Share Mortgages shall each constitute a fully perfected Lien on all
right, title and interest of the Loan Party thereto in the Collateral
described therein, subject only to Permitted Liens. In the event that
the BNY Credit Agreement terminates and all obligations thereunder have
been paid in full prior to the payment in full of the Obligations,
Borrower agrees to deliver to the Lenders the certificates evidencing
the Hypothecated Securities.
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4.7 ACCURACY AND COMPLETENESS OF INFORMATION.
(a) All factual information, reports and other papers and data
with respect to the Loan Parties (other than projections) furnished,
and all factual statements and representations made, to the Lenders
by a Loan Party, or on behalf of a Loan Party, were, at the time the
same were so furnished or made, when taken together with all such
other factual information, reports and other papers and data
previously so furnished and all such other factual statements and
representations previously so made, complete and correct in all
material respects, to the extent necessary to give the Lenders true
and accurate knowledge of the subject matter thereof in all material
respects, and did not, as of the date so furnished or made, contain
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements contained therein not
misleading in light of the circumstances in which the same were made.
(b) All projections with respect to the Loan Parties furnished
by or on behalf of a Loan Party to the Lenders were prepared and
presented in good faith by or on behalf of such Loan Party. No fact
is known to a Loan Party which materially and adversely affects or in
the future is reasonably likely (so far as such Loan Party can
reasonably foresee) to have a Material Adverse Effect which has not
been set forth in the financial statements referred to in Section 4.1
or in such information, reports, papers and data or otherwise
disclosed in writing to the Lender prior to the Revolving Credit
Closing Date.
4.8 SOLVENCY. On the date of issuance of the Notes and on the
Revolving Credit Closing Date, after giving effect to the incurrence of all
indebtedness and obligations being incurred on or prior to such date in
connection herewith, (i) the amount of the "present fair salable value" of
the assets of the Loan Parties, taken as a whole, will, as of such date,
exceed the amount of all "liabilities of the Borrower and of Loan Parties,
taken as a whole, contingent or otherwise", as of such date, as such quoted
terms are determined in accordance with applicable federal, provincial and
state laws governing determinations of the insolvency of debtors, (ii) the
present fair salable value of the assets of the Loan Parties, taken as a
whole, will, as of such date, be greater than the amount that will be
required to pay the liabilities of the Loan Parties, taken as a whole, on
their respective debts as such debts become absolute and matured, (iii)
neither the Borrower nor the other Loan Parties, taken as a whole, will, as
of such date, have an unreasonably small amount of capital with which to
conduct their respective businesses, and (iv) each of the Loan Parties, as a
whole, will be able to pay their respective debts as they mature. For
purposes of this Section 4.8, "debt" means "liability on a claim", "claim"
means any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, and (y) right
to an equitable remedy for breach of performance if such breach gives rise to
a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
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4.9 PURPOSE OF LOANS. The proceeds of the Loans shall be used by
the Borrower to finance the Settlement Obligations, to repay certain
outstanding tax obligations to Revenue Canada and to finance the working
capital requirements of the Credit Parties in the ordinary course of
business and to pay fees and expenses incurred in connection herewith.
To induce the Lenders to enter into this Agreement and to make the
Loans to Borrower, the Parent hereby represents and warrants to the
Lenders that the representations and warranties made by Parent in the
Redemption Agreement dated as of April, 1998 (the "Redemption Agreement"),
among Dominion Park, L.L.C., Wellgate, Michel Marengere, Nicholas
Matossian and Rene Amyot are true, correct and complete and are
incorporated by reference herein as if made by Parent to the Lenders
herein on the date hereof.
SECTION 5. CONDITIONS PRECEDENT
5.1 CONDITIONS TO LOANS. The agreement of Lamar to make the initial
Revolving Credit Loan is subject to the satisfaction, immediately prior to
or concurrently with the making of such Revolving Credit Loan, of the
following conditions precedent:
(a) LOAN DOCUMENTS. The Lenders shall have received:
(i) this Agreement, executed and delivered by a duly
authorized officer of each of the Loan Parties;
(ii) each of the Guarantees, each executed and delivered by a
duly authorized officer of the party thereto;
(iii) each of the Security Documents, each executed and
delivered by a duly authorized officer of the party thereto;
(iv) a duly executed Common Stock Purchase Warrant, in the
form attached hereto as Exhibit C (the "Warrant"), in favor of
Wellgate to purchase 333,708 shares of Common Stock of Parent; and
(v) a duly executed Warrant in favor of Lamar to purchase
1.668536 shares of Common Stock for every $10 loaned hereunder, up
to an aggregate of 1,668,536 shares of Common Stock of the Parent.
(b) BORROWER CERTIFICATE. The Lenders shall have received a
certificate of an officer of the Borrower, dated the Revolving Credit
Closing Date, stating that no Event of Default has occurred and is
continuing and that all of the representations and warranties of the
Borrower contained herein are true and correct as of the Revolving Credit
Closing Date.
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(c) CORPORATE PROCEEDINGS OF THE BORROWER. The Lenders shall have
received a copy of the resolutions, in form and substance satisfactory
to the Lenders, of the Board of Directors of the Borrower authorizing
(i) the execution, delivery and performance of this Agreement and the
other Loan Documents to which it is a party, (ii) the borrowings
contemplated hereunder and (iii) the granting by it of the Liens created
pursuant to the Borrower Security Documents, and (iv) the hypothecation
in favor of the Lenders of the Hypothecated Securities issued by the
Borrower and any transfer of such Hypothecated Securities upon any
realization upon the Parent Hypothecation of Securities Agreement,
certified by the Secretary or an Assistant Secretary of the Borrower as
of the Revolving Credit Closing Date, which certificate shall be in form
and substance satisfactory to the Lenders and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(d) BORROWER INCUMBENCY CERTIFICATE. The Lenders shall have
received a certificate of the Borrower, dated the Revolving Credit
Closing Date, as to the incumbency and signature of the officers of the
Borrower executing any Loan Document satisfactory in form and substance
to the Lenders, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Borrower.
(e) CORPORATE PROCEEDINGS OF THE PARENT. The Lenders shall have
received a copy of the resolutions, in form and substance satisfactory
to the Lenders, of the Board of Directors of the Parent authorizing (i)
the execution, delivery and performance of the Loan Documents to which
the Parent is a party and (ii) the granting by it of the Liens created
pursuant to the Parent Security Documents, certified by the Secretary or
an Assistant Secretary of the Parent as of the Revolving Credit Closing
Date, which certificate shall be in form and substance satisfactory to
the Lenders and shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(f) PARENT INCUMBENCY CERTIFICATE. The Lenders shall have received a
certificate of the Parent, dated the Revolving Credit Closing Date, as
to the incumbency and signature of the officers of the Parent executing
any Loan Document satisfactory in form and substance to the Lenders,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of the Parent.
(g) CORPORATE PROCEEDINGS OF SUBSIDIARY GUARANTORS. The Lenders
shall have received a copy of the resolutions, in form and substance
satisfactory to the Lenders, of the Board of Directors of each
Subsidiary Guarantor which is a party to a Loan Document authorizing (i)
the execution, delivery and performance of the Loan Documents to which
it is a party, (ii) the granting by it of the Liens created pursuant to
the Subsidiary Security Documents to which it is a party, and
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(iii) in the case of any Subsidiary Guarantor which is an issuer of any
Hypothecated Securities, the hypothecation or the creation of a mortgage
in favor of the Lenders in respect of the Hypothecated Securities issued
by the Subsidiary Guarantor and any transfer of such Hypothecated
Securities upon any realization upon the security, certified by the
Secretary or an Assistant Secretary of each such Subsidiary Guarantor as
of the Revolving Credit Closing Date, which certificate shall be in form
and substance satisfactory to the Lenders and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(h) SUBSIDIARY INCUMBENCY CERTIFICATES. The Lenders shall have
received a certificate of each Subsidiary Guarantor, dated the Revolving
Credit Closing Date, as to the incumbency and signature of the officers
of each such Subsidiary Guarantor satisfactory in form and substance to
the Lenders, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of each such Subsidiary Guarantor.
(i) CORPORATE DOCUMENTS. The Lenders shall have received true and
complete copies of the certificate and articles of incorporation and
by-laws of each Loan Party, certified as of the Revolving Credit Closing
Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of such Loan Party.
(j) GOOD STANDING CERTIFICATES. The Lenders shall have received
certificates dated as of a recent date from the Secretary of State or
other appropriate authority (federal, provincial or other), evidencing
the good standing of each Loan Party (i) in the jurisdiction of its
organization and (ii) in each other jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires
it to qualify as a foreign Person except, as to this subclass (ii),
where the failure to so qualify would not have a Material Adverse Effect.
(k) CONSENTS, LICENSES AND APPROVALS. The Agent shall
have received a certificate of a Responsible Officer of each of the
Loan Parties (i) attaching copies of any consents, authorizations
and filings referred to in Section 4.4, and which are required in
connection with any Loan Document and (ii) stating that such
consents, licenses and filings are in full force and effect, and
each such consent, authorization and filing shall be in form and
substance satisfactory to the Lenders.
(l) LEGAL OPINIONS. The Lenders shall have received the
following executed legal opinions all acceptable to the Lenders:
(i) the executed legal opinion of Pouliot Mercure, counsel to
the Borrower, Davie, DBI, Steen, Becker, Becker NFLD and MIL;
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(ii) the executed legal opinion of Buchanan Ingersoll
Professional Corporation, counsel to the Parent;
(iii) the executed legal opinions of Douglas Symes &
Brissenden; Mackimmie Matthews; McDougall, Ready; Pitblado &
Hoskins; Cassels Brock & Blackwell; Chase Sheehan; Curtis, Dawe;
Farmer & MacLeod; and Boyne Clarke, local counsel to the Loan
Parties, in British Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, New Brunswick, Newfoundland, Prince Edward Island and Nova
Scotia, respectively; and
(iv) the executed legal opinion of Freehill Hollingdale &
Page, counsel to CGA.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Lenders may reasonably
require.
(m) HYPOTHECATED SECURITIES AND STOCK POWERS. The Lenders shall
have received:
(i) an undated stock power or power of attorney for each
certificate representing Hypothecated Securities executed in blank
by a duly authorized officer of the grantor of the applicable
security; and
(ii) an Acknowledgment of and consent to the Equitable Share
Mortgages (if required by the Lenders' legal counsel) and the
hypothecation of the Hypothecated Securities, executed by a duly
authorized officer of the issuer of the Hypothecated Securities, in
a form acceptable to the Lenders.
(n) ACTIONS TO PERFECT LIENS. The Lenders shall have received
evidence in form and substance satisfactory to them that all filings,
recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements or
applications for registration necessary or desirable, in the opinion of
the Lenders and their counsel, to perfect, record and render effective
against all Persons, the Liens created by the Security Documents shall
have been completed.
(o) LIEN SEARCHES AND DISCHARGES. The Lenders shall have received
the results of a recent search by a Person satisfactory to the Lenders, of
the Uniform Commercial Code, the Personal Property Security Act of all
applicable jurisdictions, the Register of Personal and Movable Real
Rights and such other registration systems as the Lenders or their
counsel may require, judgment and tax lien filings which may have been
filed with respect to personal and movable property of the Loan Parties,
and the results of such searches shall be satisfactory
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to the Lenders in their sole judgment. The Lenders shall have received
Registrable discharges or termination statements in respect of all
recorded Lien (other than Permitted Liens) and/or such estoppel letters,
subordination's, inter-creditor agreements and waivers as the Agent may
require (to confirm amounts secured or collateral affected thereby), in
all cases satisfactory to the Lenders in their sole judgment.
(p) INSURANCE. The Lenders shall have received evidence in form
and substance satisfactory to them that all of the requirements of
Section 6.3 hereof as well as all other insurance requirements contained
in the Security Documents shall have been fulfilled to the entire
satisfaction of the Agent.
(q) INTERCREDITOR AGREEMENT. The Lenders shall have
entered into an Intercreditor Agreement, dated April 27, 1998 (the
"Intercreditor Agreement"), with BNY-Canada, for itself and as
agent for the lenders under the BNY Credit Agreement and the Loan
Parties, the terms of which intercreditor agreement shall be
satisfactory to the Lenders.
(r) REDEMPTION AGREEMENT. The transactions contemplated in the
Redemption Agreement shall have been consummated.
5.2 CONDITIONS TO EACH SUBSEQUENT REVOLVING CREDIT LOAN. The
agreement of Lamar to make any Revolving Credit Loan requested to be made
by it on any date (including, without limitation, its initial Revolving
Credit Loan) is subject to the satisfaction of the following conditions
precedent:
(a) COMPLIANCE. The Loan Parties will have satisfied all of the
conditions precedent set forth in Section 5.1 and will be in compliance
with all other terms and conditions of this Agreement.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date.
(c) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Revolving Credit Loans requested to be made on such date.
(d) WARRANTS. Parent shall have issued a duly executed Warrant in
favor of Lamar to purchase 1.668536 shares of Common Stock for every $10
loaned hereunder (but no Warrant for shares will be issued for any
re-borrowings after a paydown of the Revolving Loan to the extent of
such re-borrowings of the amount paid down), up to an aggregate of
1,668,536 shares of Common Stock of
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the Parent (including shares under the Warrant granted to Lamar pursuant to
Section 5.1(a) hereof).
(e) ADDITIONAL MATTERS. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with
the transactions contemplated by this Agreement, and the other Loan
Documents shall be satisfactory in form and substance to Lamar, and
Lamar shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated
hereby or thereby as it shall reasonably request. Each borrowing by the
Borrower under the Revolving Loan Commitment shall constitute a
representation and warranty by the Borrower as of the date thereof that
the conditions contained in this Section 5.2 have been satisfied. In
the event that Lamar waives any condition precedent set forth in Section
5.1 or 5.2 with respect to the making of any Revolving Credit Loan, this
will not preclude Lamar from insisting on satisfaction of such condition
precedent in connection with the making of any other Revolving Credit
Loan.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitment remains in effect or any amount is owing to the Lenders
hereunder or under any other Loan Document, the Borrower and (except in
the case of financial information and reports) each of the other Loan
Parties shall:
6.1 FINANCIAL STATEMENTS; COMPLIANCE CERTIFICATES; OTHER
INFORMATION. Furnish to the Lenders (a) any materials, reports or
information delivered or required to be delivered to BNY Canada, as agent
under the BNY Credit Agreement concurrently with such delivery to BNY
Canada and (b) such other financial information as the Lenders may
reasonably request from time to time to clarify or amplify the information
required to be furnished to the Lenders under this Agreement.
6.2 COMPLIANCE WITH AGREEMENTS. Comply with all agreements
with, promises, covenants or warranties to, the Lenders hereunder or in
the Loan Documents.
6.3 COMPLIANCE WITH BNY CREDIT AGREEMENT. Comply with all
promises, warranties and covenants set forth in the BNY Credit Agreement
and the "Loan Documents" referred to therein. Failure to do so shall
constitute an Event of Default hereunder.
6.4 ADDITIONAL COLLATERAL; ADDITIONAL GUARANTORS.
(a) (i) In the event that any Loan Party acquires any property or
interest in property (including, without limitation, real or immovable
property) other than property ("EXCLUDED PROPERTY") in respect of which
it is entitled to grant a Permitted Lien ranking in priority to the Lien
of the Lenders, that is not
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subject to a perfected Lien in favor of the Lenders pursuant to the
Security Documents, such Loan Party shall take such action (including,
without limitation, the preparation and filing of mortgages, hypothecs
or deeds of trust in form and substance satisfactory to the Lenders) as
the Lenders shall request in order to create and/or perfect a first
ranking Lien in favor of the Lenders on such property, subject only to
Permitted Liens; (ii) in the event that any Loan Party acquires any
Excluded Property that is not subject to a perfected Lien in favor of
the Lenders pursuant to the Security Documents, the Loan Party shall
take such of the action described in subclause (i) above as the Lenders
shall request in order to create and/or perfect a first ranking Lien in
favor of the Lenders on such property, subject only to Permitted Liens.
(b) In the event that a Loan Party is permitted to acquire or form
any additional Subsidiary, such Subsidiary shall execute a guarantee, a
debenture and pledge of debenture, an immovable and movable hypothec, a
mortgage in respect of each parcel of real property owned by it, a
security agreement, and the Loan Party and/or any Subsidiary which is a
holder of any Capital Stock of such Subsidiary shall execute such pledge
agreements, hypothecs or supplements to the Subsidiary Pledge Agreements
and such other security as may be required by the Lenders, each in form
and substance satisfactory to the Lenders, and shall take such other
action as shall be necessary or advisable (including, without
limitation, the execution of financing statements on form UCC-1) in
order to perfect the Liens granted by such Subsidiary in favor of the
Lenders and perfect the pledge of all of the Capital Stock of such
Subsidiary in favor of the Lenders. Such Subsidiary shall thereupon
become a Subsidiary Guarantor for all purposes under the Loan Documents.
The Lenders shall be entitled to receive legal opinions of one or more
counsel to the Loan Parties and such Subsidiary addressing such matters
as the Lenders or their counsel may reasonably request, including,
without limitation, the enforceability of the guaranty and other
security documents to which such Subsidiary becomes a party and the
pledge of the Capital Stock of such Subsidiary, and the creation,
validity and perfection of the Liens so granted by such Subsidiary and
the Loan Parties and/or other Subsidiaries to the Lenders.
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SECTION 7. REGARDING THE BNY CREDIT AGREEMENT
7.1 SUBSEQUENT AMENDMENT OR TERMINATION OF THE BNY CREDIT
AGREEMENT. Any waiver, modification or amendment to the provisions of the
BNY Credit Agreement incorporated by reference herein shall constitute a
waiver, modification or amendment of the provisions so incorporated by
reference solely to the extent of and subject to the terms and conditions
set forth in any such waiver, modification or amendment. No replacement
or termination of the BNY Credit Agreement, nor any repayment, refinancing
or forgiveness of the "Obligations" thereunder nor the termination,
cancellation, satisfaction or forgiveness of any Lien or security interest
granted (or purported to be granted) in connection with such "Obligations"
shall act so as to affect this Agreement or the Loan Documents (as defined
herein).
7.2 NOTICE OF AMENDMENT. The Borrower shall deliver to Lenders
within five (5) calendar days of the execution thereof, copies of any
amendments, restatements, waivers, modifications or, or agreements
relating to, the BNY Credit Agreement or the "Loan Documents" referred to
therein.
SECTION 8. EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT; REMEDIES. If any of the following events
shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms hereof; or the Borrower shall fail
to pay any interest on any Loan or any other amount payable hereunder or
under the other Loan Documents, within 5 business days after any such
interest or other amount becomes due in accordance with the terms thereof
or hereof; or
(b) Any representation or warranty made or deemed made by a Loan
Party herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been incorrect in any material respect on or
as of the date made or deemed made; or
(c) A Loan Party shall default in the observance or performance
of any agreement contained in Section 7 of the BNY Credit Agreement;
(d) A Loan Party shall default in the observance or performance
of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30
days; or
(e) A Loan Party shall (i) default in any payment of principal
of or interest on any Indebtedness (other than the Revolving Credit Loans
and the Term Loan) or in the
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payment of any Guarantee Obligation, beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was created, if the aggregate
amount of the Indebtedness and/or Guarantee Obligations in respect of which
such default or defaults shall have occurred is at least $500,000.00; or (ii)
default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation to become payable; or
(f) (i) A Loan Party shall commence any case, proposal,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, monitor, administrator, conservator, sequestrator or other
similar official for it or for all or any substantial part of its assets,
or a Loan Party shall make a general assignment for the benefit of its
creditors or file a proposal or notice of intention to file a proposal; or
(ii) there shall be commenced against a Loan Party any case, proposal,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) provided same has not had the effect of
staying any rights of the Lenders and has not given rise to any Material
Adverse Effect, remains undismissed, undischarged or unbonded for in the
case of personal or movable property in or subject to the jurisdiction of
a proceeding in Quebec, a period of 10 days, and in all other cases, a
period of 60 days; or (iii) there shall be commenced against any Loan
Party any case, proceeding or other action (including, without limitation,
hypothecary recourses) seeking the exercise of a hypothecary right or the
issuance of a warrant of attachment, execution, seizure, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which provided same
has not had the effect of staying any rights of the Lenders and has not
given rise to any Material Adverse Effect, shall not have been vacated,
discharged, or stayed or bonded pending appeal within 10 days, in the case
of personal or movable property in or subject to the jurisdiction of a
proceeding in Quebec, and in all other cases, within 60 days from the
entry thereof; (iv) a Loan Party shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; (v) a Loan Party shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due, or (vi) if any creditor
holding a Lien on any assets of a Loan Party enforces or gives notice of
its intention to enforce such Lien; or
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(g) (i) Any Loan Party shall engage in any transaction or
activity prohibited under relevant legislation or documents relating to
any Plan, (ii) any accumulated funding deficiency, solvency deficiency,
unfunded liability or wind up or withdrawal liability shall exist with
respect to any Plan or any Lien in favor of any Governmental Authority or
any Plan trustee or administrator or a Plan shall arise on the assets of
any Loan Party (iii) a Termination Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate, any Plan, which Termination
Event or commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Lenders, likely to result in the termination
of such Plan (iv) any Plan shall terminate (v) any Loan Party shall, or in
the reasonable opinion of the Lenders is likely to, incur any liability in
connection with a withdrawal from, or the insolvency or reorganization of,
a Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered against a
Loan Party involving in the aggregate a liability (not paid or fully
covered by insurance) of $25,000,000.00 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof (or such lesser period of
time, which, according to the laws of any applicable jurisdiction, would
permit the creditor of the judgment to obtain execution thereof in respect
of the assets of a Loan Party) provided however, that if such judgments or
decrees have given rise to any Lien on any Collateral, the provisions of
paragraph (f) above shall apply if the creditor holding such Lien enforces
or gives notice of its intention to enforce such Lien; or
(i) (i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or a Loan Party which is a party
to any of the Security Documents shall so assert, or (ii) the Lien created
by any of the Security Documents shall cease to be enforceable and of the
same effect and priority purported to be created thereby; or
(j) Any Guarantee shall cease, for any reason, to be in full
force and effect or any Guarantor shall so assert; or
(k) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
shall acquire, directly or indirectly, beneficial ownership of 20% (the
"Requisite Percentage") or more of any outstanding class of Capital Stock
having ordinary voting power in the election of directors of the Parent or
the Borrower (other than Lamar, Riverwoods Investments, LLC and any person
who may be deemed to have acquired beneficial ownership of the Requisite
Percentage by virtue of his becoming a member of the group which reported
beneficial ownership of shares on August 7, 1997), or (B) shall obtain the
power (whether or not exercised), directly or indirectly, to elect a
majority of the Parent's or Borrower's
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directors, or (ii) the Board of Directors of the Parent shall not consist of
a majority of the persons listed in Schedule 9(k).
(1) Any of the provisions of Section 8(e), (f), (g), (h) or (i)
hereof occurs in respect of a Non Guarantor Subsidiary or its assets which
has, or could reasonably be expected to have, a Material Adverse Effect;
or
(m) Any of the MDC Stock forming part of the Hypothecated
Securities is decertificated without the prior written consent of the
Lenders;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) of this Section with
respect to the Borrower, automatically (by the mere lapse of time) the
Revolving Credit Commitment shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) Lamar may by notice to the Borrower declare the
Revolving Credit Commitment to be terminated forthwith, whereupon the
Revolving Credit Commitment shall immediately terminate; and (ii) both of
the Lenders may, or either Lender upon an Event of Default in payment of
principal or interest on the Loans or an Event of Default under Section
8.6 of the BNY Credit Agreement (incorporated by reference herein under
Section 6.3 hereof) and after providing the other Lender with 45 days
written notice of intent to accelerate and pursue remedies may, by notice
to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and
payable forthwith, whereupon the same shall immediately become due and
payable and failing which payment, the Lenders may, subject to the terms
of the Intercreditor Agreement, exercise all of its rights hereunder,
under the Security Documents or at law. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices
of any kind are hereby expressly waived.
8.2 APPLICATION OF PROCEEDS. The proceeds and avails of any sale
of the Collateral, or any part thereof, and the proceeds and avails of any
remedy hereunder or under any of the Security Documents shall be paid to
and applied by the Lenders as follows:
(a) First, to the payment of costs and expenses of suit,
if any, and of such sale, and to the extent permitted by applicable
law, the reasonable compensation of attorneys, and of all proper
expenses, liabilities and advances incurred or made hereunder by
the Lender(s), and of all taxes, assessments or liens superior to
the lien of these presents, except any taxes, assessments or other
superior lien subject to which said sale may have been made;
(b) Second, to the ratable payment of all accrued but
unpaid interest on the outstanding Obligations apportioned among
the Lenders in proportion to the
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amount of principal owed to each Lender with respect to the aggregate
principal amount of then outstanding Obligations;
(c) Third, to the ratable payment of all unpaid principal
on the outstanding Obligations apportioned among the Lenders in
proportion to the amount of principal owed to each Lender with
respect to the aggregate principal amount of then outstanding
Obligations;
(d) Fourth, to the ratable payment of all other
indebtedness due and payable on the date of such application
arising from the Obligations apportioned among the Lenders in
proportion to the amount of principal owed to each Lender with
respect to the aggregate principal amount of then outstanding
Obligations;
(e) Fifth, the balance, if any, shall be paid as required
by law (including as a court of competent jurisdiction may direct).
8.3 RECEIPT OF COLLATERAL. (a) Each Lender agrees that (i) if
at any time such Lender receives proceeds from any disposition of
Collateral other than a distribution pursuant to Section 8.2 hereof, such
Lender shall promptly pay the other Lender such other Lender's
proportionate share of any such disposition for application in accordance
with Section 8.2 hereof and (ii) such Lender shall not take or cause to be
taken any action including, without limitation the commencement of any
proceedings, the purpose of which is or could be to give such Lender any
preference or priority against the other Lender with respect to the
Collateral.
(b) In the event either Lender receives any Collateral, such
Lender agrees to hold such Collateral in trust for the benefit of both of
the Lenders and to sell or otherwise dispose of such Collateral only in
accordance with the provisions of Section 8.1 and to apply the proceeds of
any such sale in accordance with the provisions of Section 8.2.
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SECTION 9. AGREEMENT AMONG LENDERS
9.1 PRO RATA OBLIGATIONS. In the event that the Lenders,
directly or through the Agent, or any one of them is sued or threatened
with suit by the Borrower or any other Loan Party, or by any receiver,
trustee, creditor or any committee of creditors on account of any
preference, voidable transfer or lender liability issue, alleged to have
occurred or been received as a result of, or during the transactions
contemplated under, this Agreement, then in such event any money paid in
satisfaction or compromise of such suit, action, claim or demand and any
expenses, costs and attorneys' fees paid or incurred in connection
therewith, whether by the Agent, the Lenders or any one of them, shall be
(i) the obligation of the Lender or Lenders, if any, determined to have
been responsible for such liability or (ii) if no such determination can
be made, shared proportionately by the Lenders, with appropriate
reimbursement made upon demand. In addition, any costs, expenses, fees or
disbursements incurred by outside agencies or attorneys retained by the
Lenders to effect collection or enforcement of any rights in the
Collateral, including enforcing, preserving or maintaining rights under
this Agreement shall be shared proportionately between and among the
Lenders to the extent not reimbursed by the Borrower or from the proceeds
of Collateral. The provisions of this paragraph shall not apply to (A)
any suits, actions, proceedings or claims that are unrelated, directly or
indirectly, to this Agreement, or (B) costs, fees, expenses, or
disbursements resulting from the willful misconduct of any Lender.
SECTION 10. MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof, may be amended,
supplemented, restated, replaced or modified except in accordance with the
provisions of this Section 10.1. The Lenders may, from time to time, (a)
enter into with the Loan Parties written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as the
Lenders may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default
and its consequences. In the case of any waiver, the Borrower and the
Lenders shall be restored to their former positions and rights hereunder
and under the other Loan Documents, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
10.2 NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including
by facsimile transmission) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (a) in the case of
delivery by hand, when delivered, (b) in the case of delivery by mail, 3
days after being deposited in the mail, postage prepaid, or (c) in the
case of delivery by facsimile transmission, when sent and receipt has been
electronically
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confirmed, addressed as follows or to such other address as may be hereafter
notified by the respective parties hereto:
<TABLE>
<S> <C>
Any Loan Party,
including Borrower: Dominion Bridge Corporation
500 Notre-Dame Street
Lachine, Quebec H8S 2B2
Attention: General Counsel
Fax: (514) 634-2448
With a copy to: Pouliot Mercure
1155 Rene-Levesque Blvd. West
31st Floor
Montreal, Quebec
H3B 3S6
Attention: Mr. Brian Riordan
Fax: (514)875-4308
and
Buchanan Ingersoll P.C.
Eleven Penn Center
14th Floor
1835 Market Street
Philadelphia, Pennsylvania
19103
Attention: Joseph Galda, Esq.
Fax: (215) 665-8760
Lamar: Lamar Investments, Inc.
650 Dundee Road, Suite 460
Northbrook, Illinois 60062
Attention: Leonard B. Feldman
Fax: (847) 509-8529
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<PAGE>
with a copy to: Ungaretti & Harris
3500 Three First National Plaza
Chicago, Illinois 60602
Attention: Gary I. Levenstein,
Esq.
Fax: (312) 977-4405
Wellgate: Wellgate International Ltd.
c/o Pouliot Mercure
1155 Rene-Levesque Blvd. West
31st Floor
Montreal, Quebec
H3B 3S6
Attention: Mr. Brian Riordan
Fax: (514)875-4308
</TABLE>
provided that any notice, request or demand to or upon Lamar pursuant to
Section 2.3 shall not be effective until received.
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Lenders, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Loan Documents
and in any document, certificate or statement delivered pursuant hereto or
in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.
10.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Lenders for all their out of pocket costs and
expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration
of the transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Lenders, (b) to
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pay or reimburse the Lenders for all costs and expenses incurred in
connection with enforcing, preserving, evaluating, monitoring or realizing
any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of
counsel (including the allocated fees and expenses of in house counsel)
engaged by the Lenders and the Agent, (c) to pay, indemnify, and hold the
Lenders harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect
of, this Agreement, the other Loan Documents and any such other documents,
(d) to pay, indemnify, and hold the Lenders and the Agent harmless from and
against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including, without limitation, any of
the foregoing relating to the violation of, non compliance with or liability
under, any Environmental Law applicable to the operations of any Loan Party
(or the operations of any Non Guarantor Subsidiary if such violation, non
compliance or liability causes a Material Adverse Effect) or any of the
Properties (all the foregoing in this clause (d), collectively, the
"INDEMNIFIED LIABILITIES"), provided, that the Borrower shall have no
obligation hereunder to the Lenders with respect to indemnified liabilities
arising from (i) the gross negligence or willful misconduct of any Lender or
(ii) legal proceedings commenced against any Lender by any security holder or
creditor thereof arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such. The agreements
in this Section shall survive repayment of the Loans and all other amounts
payable hereunder.
10.6 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Loan Parties, the Lenders and their respective
successors, assigns and legal representatives, except that the
Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent
of the Lenders. The parties hereto acknowledge that Lamar may
change its name after the date hereof without affecting, in any
manner, the rights or obligations of the parties hereto.
(b) In the event of an assignment by any Lender of all or
any part of its rights and obligations under this Agreement and the
other Loan Documents, the Loan Parties shall execute and deliver in
form satisfactory to the Lender, such unconditional confirmations,
acknowledgments and acquiescence as may be requested by the Lender
to evidence or effect any assignment hereunder and such further
confirmations and amendments to security documents and instruments
as the Lender may require to give effect to such assignment. From
and after the
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effective date of such assignment, the following will apply, namely:
(w) such assignment will not result in novation of the Revolving Credit
Commitment, the Term Loan or any other obligations under this Agreement,
such novation being hereby expressly disclaimed, (x) the obligation of
the assignee to make Revolving Credit Loans will be the same obligation
as that of the Lenders and not a new obligation, notwithstanding any
release of the Lenders from such obligations, (y) the assignee shall be
a party hereto and, to the extent provided in such assignment, have the
rights and obligations of the Lenders hereunder with the Revolving
Credit Commitment as set forth therein, and the obligations of the
Borrower arising from any Revolving Credit Loan advanced by the assignee
will form part of the Obligations, will be secured by the Security
Documents and the assignee and the Lenders (to the extent it continues
to retain an interest herein) will have a solidary interest therein, and
(z) the Lenders shall, to the extent provided in such assignment, be
released from its obligations under this Agreement.
(c) Lamar, on behalf of the Borrower, shall maintain at
its address referred to in Section 10.2 a register (the "REGISTER")
for the recordation of the Revolving Credit Commitment of, and
principal amounts of the Revolving Credit Loans made by, Lamar from
time to time. The entries in the Register shall be conclusive, in
the absence of manifest error. The Register shall be available for
inspection by the Borrower at any reasonable time and from time to
time upon reasonable prior notice.
(d) The Borrower authorizes the Lenders to disclose to
any assignees (each, a "TRANSFEREE") and any prospective
Transferee, subject to the provisions of Section 10.6, any and all
financial information in the Lenders' possession concerning the
Borrower and its Affiliates which has been delivered to the Lenders
by or on behalf of the Borrower pursuant to this Agreement.
(e) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning
assignments of Loans relate only to absolute assignments and that
such provisions do not prohibit assignments creating security
interests.
10.7 SET OFF. In addition to any rights and remedies of the
Lenders provided by law, the Lenders shall have the right, without prior
notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise) to set off or compensate and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by the Lenders or any branch or agency thereof
to or for the credit or the account of the Borrower. The Lenders agree
promptly to notify the Borrower after any such set off or compensation and
application made by the Lenders,
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<PAGE>
provided that the failure to give such notice shall not affect the validity
of such set off and application.
10.8 COUNTERPARTS. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission of signature pages hereto), and all
of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Lenders.
10.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Loan Parties and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Lender relative to subject matter
hereof not expressly set forth or referred to herein or in the other Loan
Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND, EXCEPT AS AND TO THE
EXTENT OTHERWISE EXPRESSLY AGREED IN ANY LOAN DOCUMENT, THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED 1N ACCORDANCE WITH, THE LAWS OF THE PROVINCE OF QUEBEC AND
THE LAWS OF CANADA APPLICABLE THEREIN, EXCEPT FOR THE PERFECTION AND
ENFORCEMENT OF LIENS IN OTHER JURISDICTIONS WHICH SHALL BE GOVERNED BY THE
LAWS OF THOSE JURISDICTIONS.
10.12 SUBMISSION TO JURISDICTION; WAIVERS. EACH OF THE LOAN
PARTIES IRREVOCABLY AND CONDITIONALLY HEREBY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY COURT LOCATED WITHIN QUEBEC PROVINCE, AND IRREVOCABLY
AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR THE
OTHER FINANCING AGREEMENTS SHALL BE LITIGATED IN SUCH COURTS, AND EACH OF
THE LOAN PARTIES WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER
VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH
COURT AND EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER
DIRECTED TO IT AT THE ADDRESS SET FORTH IN SECTION 10.2 AND THAT SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT
OR FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN POSTED TO THE BORROWER'S
ADDRESS. A COPY OF ANY SERVICE OF
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<PAGE>
PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO THE LOAN PARTIES AT
THE ADDRESS PROVIDED IN SECTION 10.2, EXCEPT THAT UNLESS OTHERWISE PROVIDED
BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE
VALIDITY OF SERVICES OF PROCESS. IF ANY AGENT APPOINTED BY THE BORROWER
REFUSES TO ACCEPT SERVICE, THE LOAN PARTIES HEREBY AGREE THAT SERVICE UPON IT
BY MAIL OR OTHERWISE IN ACCORDANCE WITH SECTION 10.2 WILL CONSTITUTE
SUFFICIENT NOTICE. EACH LOAN PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY
LAW, TRIAL BY JURY, AND WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND
WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE LENDERS. NOTHING
CONTAINED IN THIS SECTION 10.12 WILL AFFECT THE RIGHT OF THE LENDERS TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF THE
LENDERS TO BRING ANY ACTION OR PROCEEDING AGAINST ANY LOAN PARTY OR THE
PROPERTY OF ANY OF THEM IN THE COURTS OF ANY OTHER JURISDICTION TO THE EXTENT
NECESSARY TO ENFORCE THEIR LIENS AGAINST PROPERTY LOCATED IN SUCH
JURISDICTIONS. EACH LOAN PARTY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION REFERRED TO ABOVE ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES.
10.13 ACKNOWLEDGMENTS. Each of the Loan Parties acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) the Lenders have no fiduciary relationship with or
duty to the Loan Parties arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship
between the Loan Parties, on one hand, and the Lenders, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby or among the Loan Parties and the Lenders.
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10.14 CONFIDENTIALITY. The Lenders agree to keep confidential all
non public information provided to it by the Borrower pursuant to this
Agreement that is designated by the Borrower in writing as confidential;
PROVIDED that nothing herein shall prevent the Lenders from disclosing any
such information (i) to any Transferee which receives such information
having been made aware of the confidential nature thereof, (ii) to its
employees, directors, agents, attorneys, accountants and other
professional advisors, (iii) upon the request or demand of any examiner or
other Governmental Authority having jurisdiction over the Lenders, (iv) in
response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (v) which
has been publicly disclosed other than in breach of this Agreement, (vi)
in connection with the exercise of any remedy hereunder or (vii) in
compliance with the applicable requirements of any federal, state or
provincial securities laws of the United States, Canada or Australia.
10.15 FORMAL DATE. This Agreement may be referred to as bearing
formal date of April 6, 1998 notwithstanding the actual date of its
execution or the date on which this Agreement becomes effective. The
formal date is for purposes of reference only.
10.16 CURRENCY CONVERSION. If, for purposes of obtaining judgment
against any Loan Party pursuant to this Agreement or any other Loan
Document, it becomes necessary to convert into Canadian funds an amount
due hereunder or thereunder in Dollars, then the conversion shall be made
at the rate of exchange prevailing on the last business day in Montreal,
Quebec before the day on which the judgment is rendered.
For this purpose, "rate of exchange" means the spot rate at which
the Lenders are able to purchase Dollars with Canadian funds on the
relevant date. In the event that there is a change in the rate of
exchange prevailing between the day before the day on which the judgment
is rendered and the date of payment of the amount due, the Loan Party in
question will pay such additional amount(s) as may be necessary to ensure
that the amount paid on such date is the amount in Canadian funds which,
when converted at the rate of exchange prevailing on the date of payment,
is the amount then due in Dollars. Any amount due by a Loan Party under
this paragraph shall be due as a separate debt and shall not be affected
by judgment being obtained for any other sums due under this Agreement or
any other Loan Document.
10.17 LANGUAGE. The parties acknowledge that they have required
that this Agreement and all related documents be prepared in English. Les
parties reconnaissent avoir exige que la presente convention et tous les
documents connexes soient rediges en anglais.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
GROUPE CEDAR CANADA INC./CEDAR GROUP CANADA, INC.
BY: /s/ Nicolas Matossian
-----------------------------------------------
ITS:
-----------------------------------------------
LAMAR INVESTMENTS, INC.
BY: /s/ Gary I. Levenstein
-----------------------------------------------
Gary I. Levenstein, as
Attorney-in-Fact for
Leonard Feldman,
President
WELLGATE INTERNATIONAL LTD.
BY: /s/ Michel Marengere
----------------------------------------------
ITS:
----------------------------------------------
BY: /s/ Nicolas Matossian
-----------------------------------------------
By its execution and delivery of this Agreement, each of the undersigned
acknowledges having read and understood all the terms hereof, represents
and warrants that all representations and warranties made by the Borrower
in respect of it or its property, operations or prospects is true and
accurate in all respect as at the date hereof and covenants and agrees to
do and perform or not to do or permit, as the case may be, each action,
thing or circumstance which the Borrower has covenanted and agreed to
cause it to do or perform or not to do or permit, as the case may be.
DOMINION BRIDGE CORPORATION DOMINION BRIDGE, INC.
BY: /s/ Allen S. Gerard BY: /s/ Nicolas Matossian
------------------------ -------------------------------
TITLE TITLE
-40-
<PAGE>
STEEN CONTRACTORS LIMITED INDUSTRIES DAVIE INC./DAVIE
INDUSTRIES INC.
BY: /s/ Nicolas Matossian BY: /s/ Nicolas Matossian
------------------------ -------------------------------
TITLE TITLE
CEDAR GROUP AUSTRALIA PTY LES ENTREPRENEURS BECKER
LIMITED INC./BECKER CONTRACTORS INC.
BY: /s/ Nicolas Matossian BY: /s/ Nicolas Matossian
------------------------ -------------------------------
TITLE TITLE
BECKER CONTRACTS LIMITED MIL INTERMODAL INC.
BY: /s/ Nicolas Matossian BY: /s/ Nicolas Matossian
------------------------ -------------------------------
TITLE TITLE
-41-
<PAGE>
SCHEDULE I
PERMITTED LIENS
1. Liens listed on Schedule 8.3 to the BNY Credit Agreement;
and
2. Liens in favor of BNY-Canada pursuant to the BNY Credit
Agreement.
<PAGE>
LOAN AND SECURITY AGREEMENT, dated April 28, 1998, between DBAE Venture,
LLC, a Delaware limited liability company ("Lender"), and Lamar Investments,
Inc., an Illinois corporation (the "Borrower").
RECITALS:
A. The Borrower has requested the Lender to make a term loan to the
Borrower in the aggregate principal amount of Ten Million Dollars
($10,000,000.00), the proceeds of which will be used to fund a revolving loan
arrangement with Dominion Bridge Corporation, a Delaware corporation, and/or
its Affiliates.
B. The Lender is willing to make such loan to the Borrower on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth in this Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower and
the Lender hereby agree as follows:
1. DEFINITIONS. As used herein:
"AFFILIATE" means: (a) any Person which, directly or indirectly,
controls, is controlled by or is under common control with, the Borrower; (b)
any Person which beneficially owns or holds, directly or indirectly, five
percent or more of any class of voting stock of the Borrower; or (c) any
Person, five percent or more of any class of the voting stock (or if such
Person is not a corporation, five percent or more of the equity interest) of
which is beneficially owned or held, directly or indirectly, by the Borrower.
The term control (including the terms "controlled by" and "under common
control with"), means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of the Person in
question.
"BUSINESS DAY" means any day that is not a Saturday, Sunday, or day on
which banks in Chicago, Illinois are required or permitted to close.
"CAPITAL LEASE" means any lease of Property by the Borrower that, in
accordance with GAAP, should be reflected as a liability on the balance sheet
of the Borrower.
"CLOSING DATE" means the date on which the Term Loan is made hereunder.
"COLLATERAL" has the meaning given to such term in Section 6.1.
"DBC" means Dominion Bridge Corporation, a Delaware corporation.
"DBC COLLATERAL" means the collateral granted to the Borrower and
Wellgate International Ltd. under the DBC Credit Agreement.
<PAGE>
"DBC CREDIT AGREEMENT" means the Credit Agreement dated the date hereof
among the Borrower, Wellgate International Ltd., Groupe Cedar Canada
Inc./Cedar Group Canada Inc., DBC and certain affiliates of DBC named therein.
"DBC OBLIGATIONS" means the obligations of Groupe Cedar Canada
Inc./Cedar Group Canada Inc., as borrower, under, and the guarantors of, the
DBC Credit Agreement.
"DEBT" means all liabilities, obligations and indebtedness of the
Borrower to any Person, of any kind or nature, now or hereafter owing,
arising, due or payable, howsoever evidenced, created, incurred, acquired or
owing, whether primary, secondary, direct, contingent, fixed or otherwise,
and including, without in any way limiting the generality of the foregoing:
(i) the Borrower's liabilities and obligations to trade creditors; (ii) all
Obligations; (iii) all obligations and liabilities of any Person secured by
any Lien on the Borrower's Property, even though the Borrower shall not have
assumed or become liable for the payment thereof; PROVIDED, HOWEVER, that all
such obligations and liabilities which are limited in recourse to such
Property shall be included in Debt only to the extent of the book value of
such Property as would be shown on a balance sheet of the Borrower prepared
in accordance with GAAP; (iv) all obligations or liabilities created or
arising under any Capital Lease or conditional sale or other title retention
agreement with respect to Property used or acquired by the Borrower, even if
the rights and remedies of the lessor, seller or lender thereunder are
limited to repossession of such Property; PROVIDED, HOWEVER, that all such
obligations and liabilities which are limited in recourse to such Property
shall be included in Debt only to the extent of the book value of such
Property as would be shown on a balance sheet of the Borrower prepared in
accordance with GAAP; (v) all accrued pension fund and other employee benefit
plan obligations and liabilities; (vi) all obligations and liabilities under
guaranties; and (vii) deferred taxes.
"EVENT" means any event or condition which, with notice, the passage of
time, the happening of any other condition or event, or any combination
thereof, would constitute an Event of Default.
"EVENT OF DEFAULT" has the meaning given to such term in Section 8.1.
"GAAP" means at any particular time with respect to the Borrower,
generally accepted accounting principles as in effect at such time,
consistently applied, PROVIDED, HOWEVER, that, if employment of more than one
principle shall be permissible at such time in respect of a particular
accounting matter, "GAAP" shall refer to the principle which is then employed
by the Borrower with the concurrence of its independent certified public
accountants, who are acceptable to the Lender.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement entered into
by the Borrower, Wellgate International Ltd. and the Bank of New York
relating to the payment of the DBC Obligations and to their relative rights
in and to the DBC Collateral.
2
<PAGE>
"LIEN" means: (a) any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether
such interest is based on the common law, statute, or contract, and including
without limitation, a security interest, charge, claim, or lien arising from
a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
deposit arrangement, agreement, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes; and (b) to
the extent not included under clause (a), any reservation, exception,
encroachment, easement, right-of-way, covenant, condition, restriction, lease
or other title exception or encumbrance affecting Property.
"LOAN DOCUMENTS" means this Agreement, the Term Note, and all other
agreements, instruments, and documents heretofore, now or hereafter
evidencing, securing, guaranteeing or otherwise relating to the Obligations,
the Collateral, the Security Interest, or any other aspect of the
transactions contemplated by this Agreement.
"OBLIGATIONS" means all present and future loans, advances, liabilities,
obligations, covenants, duties, and Debts owing by the Borrower to the
Lender, whether or not arising under this Agreement, whether or not evidenced
by any note, or other instrument or document, whether arising from an
extension of credit, opening of a letter of credit, acceptance, loan,
guaranty, indemnification or otherwise, whether direct or indirect
(including, without limitation, those acquired by assignment from others, and
any participation by the Lender in the Borrower's debts owing to others),
absolute or contingent, due or to become due, primary or secondary, as
principal or guarantor, and including, without limitation, all interest,
charges, expenses, fees, attorneys' fees, filing fees and any other sums
chargeable to the Borrower hereunder, under another Loan Document, or under
any other agreement or instrument with the Lender.
"PERMITTED LIENS" means: (a) Liens for taxes not yet payable or Liens
for taxes being contested in good faith and by proper proceedings diligently
pursued; (b) Liens in favor of the Lender; and (c) Liens reflected on EXHIBIT
A hereto.
"PERSON" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation, Public
Authority, or any other entity.
"PROCEEDS" means all products and proceeds (as defined in the UCC) of
any Collateral, and all proceeds of such proceeds and products, including,
without limitation, all cash and credit balances, all payments under any
indemnity, warranty, or guaranty payable with respect to any Collateral, all
awards for taking by eminent domain, all proceeds of fire or other insurance,
and all money and other Property obtained as a result of any claims against
third parties or any legal action or proceeding with respect to Collateral.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"PUBLIC AUTHORITY" means the government of any country or sovereign
state, or of any state, province, municipality, or other political
subdivision thereof, or any department, agency, public corporation or other
instrumentality of any of the foregoing.
3
<PAGE>
"SECURITY INTEREST" means collectively the Liens granted to the Lender
in the Collateral pursuant to this Agreement, the other Loan Documents, or
any other agreement or instrument.
"SOLVENT" shall mean when used with respect to any Person that: (a) the
fair value of all its Property is in excess of the total amount of its debts
(including contingent liabilities); (b) it is able to pay its debts as they
mature; and (c) it does not have unreasonably small capital for the business
in which it is engaged or for any business or transaction in which it is
about to engage.
"SUBSIDIARY" means any corporation of which more than 50% of the
outstanding securities of any class or classes, the holders of which are
ordinarily, in the absence of contingencies, entitled to elect a majority of
the corporate directors (or Persons performing similar functions), is at the
time, directly or indirectly through one or more intermediaries, owned by the
Borrower and/or one or more of its Subsidiaries.
"TERM LOAN" has the meaning specified in Section 2.
"TERM NOTE" has the meaning specified in Section 2.
"UCC" means the Uniform Commercial Code (or any successor statute) of
the State of Illinois or of any other state the laws of which are required by
Section 9-103 thereof to be applied in connection with the issue of
perfection of security interests.
ACCOUNTING TERMS. Any accounting term used in this Agreement shall
have, unless otherwise specifically provided herein, the meaning customarily
given in accordance with GAAP, and all financial computations hereunder shall
be computed, unless otherwise specifically provided herein, in accordance
with GAAP as consistently applied and using the same method for inventory
valuation as used in the preparation of the Financial Statements.
OTHER TERMS. All other undefined terms contained in this Agreement
shall, unless the context indicates otherwise, have the meanings provided for
by the UCC to the extent the same are used or defined therein. Wherever
appropriate in the context, terms used herein in the singular also include
the plural, and VICE VERSA, and each masculine, feminine, or neuter pronoun
shall also include the other genders.
2. LOAN. The Lender will make a term loan (the "TERM LOAN") to
Borrower on the date requested by Borrower. The Term Loan will be in the
aggregate principal amount of $10,000,000.00 repayable in accordance with the
terms of a promissory note (the "TERM NOTE"), which will be executed by the
Borrower and delivered to the Lender on the date of requested funding of the
Term Loan.
4
<PAGE>
3. INTEREST AND OTHER CHARGES.
3.1 INTEREST. The Borrower shall pay the Lender interest on the unpaid
principal balance of the Term Loan at the rate of two and one-half percent
(2-1/2%) per calendar month, prorated for a partial month, payable on the
Maturity Date (as hereinafter defined), and from and after the occurrence of
a default in payment of principal or interest on the Term Note, the Borrower
shall pay the Lender interest on the unpaid principal amount hereof until
payment in full at the rate of three and one-half percent (3-1/2%) per
calendar month, prorated for a partial month. Interest charges shall be
computed on the basis of a month of 30 days and actual days elapsed and will
be payable to the Lender on maturity of the Loan.
3.2 MAXIMUM INTEREST RATE. In no event shall the interest rate and
other charges hereunder exceed the highest rate permissible under any law
which a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that a court determines that the Lender has
received interest and other charges hereunder in excess of the highest rate
applicable hereto, such excess shall be deemed received on account of, and
shall automatically be applied to reduce, the Obligations, other than
interest in the inverse order of maturity, and the provisions hereof shall be
deemed amended to provide for the highest permissible rate. If there are no
Obligations outstanding, the Lender shall refund to the Borrower such excess.
4. PAYMENTS AND PREPAYMENTS.
4.1 REPAYMENT OF TERM LOAN. The Borrower shall repay the principal of
the Term Loan in full 120 days following the issue date thereof (the
"Maturity Date").
4.2 VOLUNTARY PREPAYMENTS OF TERM LOAN. The Borrower may prepay the
principal of the Term Loan in whole or in part at any time after the 30th day
following issuance of the Term Note and from time to time thereafter without
penalty. All voluntary prepayments of the principal of the Term Loan shall
be accompanied by the payment of all accrued but unpaid interest on the Term
Loan to the date of prepayment. Any voluntary prepayment under this Section
of less than all of the outstanding principal of the Term Loan shall be
applied to the installments of principal of the Term Loan in the inverse
order of maturity.
4.3 PLACE AND FORM OF PAYMENTS; EXTENSION OF TIME. All payments of
principal, interest, premium, and other sums due to the Lender shall be made
at the Lender's address set forth in or specified pursuant to Section 9.6.
If any payment of principal, interest, premium, or other sum to be made
hereunder becomes due and payable on a day other than a Business Day, the due
date of such payment shall be extended to the next succeeding Business Day
and interest thereon shall be payable at the applicable interest rate during
such extension.
4.4 APPLICATION AND REVERSAL OF PAYMENTS. The Lender shall determine
in its reasonable discretion the order and manner in which Proceeds of
Collateral and other payments that the Lender receives are applied to the
Term Loan, interest thereon, and the other Obligations.
5
<PAGE>
4.5 INDEMNITY FOR RETURNED PAYMENTS. If after receipt of any payment
of, or Proceeds applied to the payment of, all or any part of the
Obligations, the Lender is for any reason compelled to surrender such payment
or Proceeds to any Person, because such payment or Proceeds is invalidated,
declared fraudulent, set aside, determined to be void or voidable as a
preference, impermissible setoff, or a diversion of trust funds, or for any
other reason, then the Obligations or part thereof intended to be satisfied
shall be revived and continue and this Agreement shall continue in full force
as if such payment or Proceeds had not been received by the Lender; and the
Borrower shall be liable to Pay to the Lender, and hereby does indemnify the
Lender and hold the Lender harmless for, the amount of such payment or
Proceeds surrendered. The provisions of this Section 4.5 shall be and remain
effective notwithstanding any contrary action which may have been taken by
the Lender in reliance upon such payment or Proceeds, and any such contrary
action so taken shall be without prejudice to the Lender's rights under this
Agreement and shall be deemed to have been conditioned upon such payment or
Proceeds having become final and irrevocable. The provisions of this Section
4.5 shall survive the termination of this Agreement.
6. COLLATERAL.
6.1 GRANT OF SECURITY INTEREST.
(a) As security for all Obligations, the Borrower hereby grants to
the Lender a continuing security interest in, lien on, and assignment of:
(i) all instruments evidencing indebtedness to the Borrower by Dominion
Bridge Corporation, a Delaware corporation ("DBC") and/or any of its
Affiliates; (ii) all interests granted by DBC and its Affiliates to the
Borrower to secure repayment and performance of DBC's or its Affiliates'
obligations ("DBC OBLIGATIONS") to the Borrower; and (iii) all books,
records and other Property relating to or referring to any of the foregoing
(all of the foregoing, together with all other property in which the Lender
may at any time be granted a Lien, being herein collectively referred to as
the "COLLATERAL"). The Lender shall have all of the rights of a secured
party with respect to the Collateral under the UCC and the other laws of
the State of Illinois and any other applicable jurisdiction.
(b) All Obligations shall constitute a single loan secured by the
Collateral. The Lender may, in its sole discretion, (i) exchange, waive,
or release any of the Collateral, (ii) apply Collateral and direct the
order or manner of sale thereof as the Lender may determine, and (iii)
settle, compromise, collect, or otherwise liquidate any Collateral in any
manner, all without affecting the Obligations or the Lender's right to take
any other action with respect to any other Collateral.
6.2 PERFECTION AND PROTECTION OF SECURITY INTEREST. The Borrower
shall, at its expense, perform all steps requested by the Lender at any time
to perfect, maintain, protect, and enforce the Security Interest, including
the filing of UCC financing statements and Canadian assignments as requested
in writing from time to time by the Lender.
6
<PAGE>
6.3 RIGHT TO CURE. The Lender may, in its sole discretion and at any
time, for the Borrower's account and expense, pay any amount or do any act
required of the Borrower hereunder or requested by the Lender to preserve,
protect, maintain or enforce the Obligations, the Collateral or the Security
Interest. All payments that the Lender makes under this Section and all
out-of-pocket costs and expenses that the Lender pays or incurs in connection
with any action taken by it hereunder shall be charged to the Borrower and
shall become Obligations hereunder. Any payment made or other action taken
by the Lender under this Section shall be without prejudice to any right to
assert an Event of Default hereunder and to proceed thereafter as herein
provided.
6.4 LENDER'S RIGHTS, DUTIES, AND LIABILITIES. The Borrower assumes all
responsibility and liability arising from or relating to the use, sale, or
other disposition of the Collateral. Neither the Lender nor any of its
officers, directors, employees, and agents shall be liable or responsible in
any way for the safekeeping of any of the Collateral, or for any act or
failure to act with respect to the Collateral, or for any loss or damage
thereto, or for any diminution in the value thereof, or for any act of
default or any warehouseman, carrier, forwarding agency or other person
whomsoever, all of which shall be at the Borrower's sole risk. The
Obligations shall not be affected by any failure of the Lender to take any
steps to perfect the Security Interest or to collect or realize upon the
Collateral, nor shall loss of or damage to the Collateral release the
Borrower from any of the Obligations. Subject to the terms of the
Intercreditor Agreement, the Lender may (but shall not be required to),
without notice to or consent from the Borrower, sue upon or otherwise
collect, extend the time for payment of, modify or amend the terms of,
compromise or settle for cash, credit, or otherwise upon any terms, grant
other indulgences, extensions, renewals, compositions, or releases, and take
or omit to take any other action with respect to the Collateral, any security
therefor, any agreement relating thereto, any insurance applicable thereto,
or any Person liable directly or indirectly in connection with any of the
foregoing, without discharging or otherwise affecting the liability of the
Borrower for the Obligations or under this Agreement or any other agreement
now or hereafter existing between the Lender and the Borrower.
7. GENERAL WARRANTIES AND REPRESENTATIONS. The Borrower continuously
warrants and represents to the Lender, at all times during the term of this
Agreement and until all Obligations have been satisfied, that, except as
hereafter disclosed to and accepted by the Lender in writing:
7.1 AUTHORIZATION, VALIDITY, AND ENFORCEABILITY OF THIS AGREEMENT AND
THE LOAN DOCUMENTS. The Borrower has the power and authority to execute,
deliver and perform this Agreement and the other Loan Documents, to incur the
Obligations, and to grant the Security Interest. The Borrower has taken all
necessary corporate action (including, without limitation, obtaining approval
of its members) to authorize its execution, delivery, and performance of this
Agreement and the other Loan Documents. No consent, approval, or
authorization of, or declaration or filing with, any Public Authority, and no
consent of any other Person, is required in connection with the Borrower's
execution, delivery, and performance of this Agreement and the other Loan
Documents, except for those already duly obtained. Each of this Agreement
and the other Loan Documents has been duly executed and delivered by the
Borrower, and
7
<PAGE>
constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms without defense, setoff,
or counterclaim. The Borrower's execution, delivery, and performance of this
Agreement and the other Loan Documents do not and will not conflict with, or
constitute a violation or breach of, or constitute a default under, or result
in the creation or imposition of any Lien upon the Property of the Borrower
or any of its Subsidiaries (except as contemplated by this Agreement and the
other Loan Documents) by reason of the terms of (a) any contract, mortgage,
lien, lease, agreement, indenture, or instrument to which the Borrower or any
of its Subsidiaries is a party or which is binding upon it, (b) any judgment,
law, statute, rule or governmental regulation applicable to the Borrower or
any of its Subsidiaries, or (c) the Articles of Incorporation and the By-Laws
of the Borrower.
7.2 VALIDITY AND PRIORITY OF SECURITY INTEREST. The provisions of this
Agreement and the other Loan Documents create legal and valid Liens on all
the Collateral in the Lender's favor, and when all proper filings,
recordings, assignments and other actions necessary to perfect such Liens
have been made or taken in the appropriate jurisdictions, such Liens will
constitute perfected and continuing Liens on all the Collateral, having
priority over all other Liens on the Collateral except Permitted Liens,
securing all the Obligations, and enforceable against the Borrower and all
third parties.
7.3 ORGANIZATION AND QUALIFICATION. The Borrower: (a) is duly
organized and validly existing in good standing under the laws of the State
of Illinois; and (b) has all requisite power and authority to conduct its
business and to own its Property.
7.4 CORPORATE NAME; PRIOR TRANSACTIONS. The Borrower has not, during
the past five years, been known by or used any other corporate or fictitious
name, or been a party to any merger or consolidation, or acquired all or
substantially all of the assets of any Person, or acquired any of its
Property out of the ordinary course of business
7.5 RESTRICTIVE AGREEMENTS. The Borrower is not a party to any
contract or agreement, and is not subject to any charter or other corporate
restriction, which affects its ability to execute, deliver, and perform the
Loan Documents and repay the Obligations or which materially and adversely
affects or, insofar as the Borrower can reasonably foresee, could materially
and adversely affect, the Borrower's Property, business, operations, or
condition (financial or otherwise), would in any respect materially and
adversely affect the Collateral, the repayment of the Obligations, the
Lender's rights under the Loan Documents, or the Borrower's Property,
business, operations, or condition (financial or otherwise).
7.6 NO VIOLATION OF LAW. The Borrower is not in violation of any law,
statute, regulation, ordinance, judgment, order, or decree applicable to it
which violation would in any respect materially and adversely affect the
Collateral, the repayment of the Obligations, the Lender's rights under the
Loan Documents, or the Borrower's Property, business, operations, or
condition (financial or otherwise).
8
<PAGE>
8. DEFAULT; REMEDIES.
8.1 EVENTS OF DEFAULT. It shall constitute an event of default ("EVENT
OF DEFAULT") if any one or more of the following shall occur for any reason:
(a) any failure to pay the principal of or interest or premium on any
of the Obligations when due, whether upon demand or otherwise;
(b) any representation or warranty made by the Borrower in this
Agreement, any of the other Loan Documents, or any certificate furnished by
the Borrower at any time to the Lender shall prove to be untrue in any
material respect as of the date on which made;
(c) default shall occur in the observance or performance of any of
the covenants and agreements contained in this Agreement, the Term Note,
the other Loan Documents, or any other agreement entered into at any time
to which the Borrower and the Lender are party, or if any such. agreement,
instrument or document shall terminate (other than in accordance with its
terms or the terms hereof or with the written consent of the Lender) or
become void or unenforceable without the written consent of the Lender;
(d) the Borrower shall: (i) file a voluntary petition in bankruptcy
or file a voluntary petition or an answer or otherwise commence any action
or proceeding seeking reorganization, arrangement or readjustment of its
debts or for any other relief under the Federal Bankruptcy Code, as
amended, or under any other bankruptcy or insolvency act or law, state or
federal, now or hereafter existing, or consent to, approve of, or acquiesce
in, any such petition, action or proceeding; (ii) apply for or acquiesce in
the appointment of a receiver, assignee, liquidator, sequestrator,
custodian, trustee or similar officer for it or for all or any part of its
Property; (iii) make an assignment for the benefit of creditors; or (iv) be
unable generally to pay its debts as they become due;
(e) an involuntary petition shall be filed or an action or proceeding
otherwise commenced seeking reorganization, arrangement or readjustment of
the Borrower's debts or for any other relief under the Federal Bankruptcy
Code, as amended, or under any other bankruptcy or insolvency act or law,
state or federal, now or hereafter existing;
(f) a receiver, assignee, liquidator, sequestrator, custodian,
trustee or similar officer for the Borrower or for all or any part of its
Property shall be appointed involuntarily; or a warrant of attachment,
execution or similar process shall be issued against any part of the
Property of the Borrower;
(g) the Borrower shall file a certificate of dissolution under
applicable state law or shall be liquidated, dissolved or wound-up or shall
commence or have commenced against it any action or proceeding for
dissolution, winding-up or liquidation, or shall take any corporate action
in furtherance thereof;
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<PAGE>
(h) all or any part of the Property of the Borrower shall be
nationalized, expropriated or condemned, seized or otherwise appropriated,
or custody or control of such Property or of the Borrower shall be assumed
by any Public Authority or any court of competent jurisdiction at the
instance of any Public Authority, except where contested in good faith by
proper proceedings diligently pursued where a stay of enforcement is in
effect;
8.2 REMEDIES.
(a) If an Event of Default exists, the Lender may, without notice to
or demand on the Borrower, declare any or all Obligations to be immediately
due and payable (provided however that upon the occurrence of any Event of
Default described in Sections 8.1(d). 8.l(e), 8.l(f), or 8.l(g), all
Obligations shall automatically become immediately due and payable); and
pursue its other rights and remedies under the Loan Documents and
applicable law.
(b) If an Event of Default exists, in all cases subject to the terms
of the Intercreditor Agreement: (i) the Lender shall have, in addition to
all other rights, the rights and remedies of a secured party under the UCC;
(ii) the Lender may, at any time, take possession of the Collateral and
keep it on the Borrower's premises, at no cost to the Lender, or remove any
part of it to such other place or places as the Lender may desire, or the
Borrower shall, upon the Lender's demand, at the Borrower's cost, assemble
the Collateral and make it available to the Lender at a place reasonably
convenient to the Lender; and (iii) the Lender may sell and deliver any
Collateral at public or private sales, for cash, upon credit or otherwise,
at such prices and upon such terms as the Lender deems advisable, in its
sole discretion, and may, if the Lender deems it reasonable, postpone or
adjourn any sale of the Collateral by an announcement at the time and place
of sale or of such postponed or adjourned sale without giving a new notice
of sale. Without in any way requiring notice to be given in the following
manner, the Borrower agrees that any notice by the Lender of sale,
disposition or other intended action hereunder or in connection herewith,
whether required by the UCC or otherwise, shall constitute reasonable
notice to the Borrower if such notice is mailed by registered or certified
mail, return receipt requested, postage prepaid, or is delivered personally
against receipt, at least five (5) days prior to such action to the
Borrower's address specified in or pursuant to Section 9.6. If any
Collateral is sold on terms other than payment in full at the time of sale,
no credit shall be given against the Obligations until the Lender receives
payment, and if the buyer defaults in payment, the Lender may resell the
Collateral without further notice to the Borrower. In the event the Lender
seeks to take possession of all or any portion of the Collateral by
judicial process, the Borrower irrevocably waives: (a) the posting of any
bond, surety or security with respect thereto which might otherwise be
required; (b) any demand for possession prior to the commencement of any
suit or action to recover the Collateral; and (c) any requirement that the
Lender retain possession and not dispose of any Collateral until after
trial or final judgment. The Borrower agrees that the Lender has no
obligation to preserve rights to the Collateral or marshall any Collateral
for the benefit of any Person. The Lender is hereby granted a
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license or other right to use, without charge, the Borrower's labels,
patents, copyrights, name, trade secrets, trade names, trademarks, and
advertising matter, or any similar property, in completing production of,
advertising or selling any Collateral, and the Borrower's rights under all
licenses and all franchise agreements shall inure to the Lender's benefit.
The proceeds of sale shall be applied first to all expenses of sale,
including attorneys' fees, and second, in whatever order the Lender elects,
to all Obligations. The Lender will return any excess to the Borrower or
such other Person as shall be legally entitled thereto and the Borrower
shall remain liable for any deficiency.
(c) If an Event of Default occurs, the Borrower hereby waives all
rights to notice and hearing prior to the exercise by the Lender, subject
to the Intercreditor Agreement, of the Lender's rights to repossess the
Collateral without judicial process or to replevy, attach or levy upon the
Collateral without notice or hearing.
9. MISCELLANEOUS.
9.1 CUMULATIVE REMEDIES; NO PRIOR RECOURSE TO COLLATERAL. The
enumeration herein of the Lender's rights and remedies is not intended to be
exclusive, and such rights and remedies are in addition to and not by way of
limitation of any other rights or remedies that the Lender may have under the
UCC or other applicable law. The Lender shall have the right, in its sole
discretion, to determine which rights and remedies are to be exercised and in
which order. The exercise of one right or remedy shall not preclude the
exercise of any others, all of which shall be cumulative. The Lender may,
without limitation, proceed directly against the Borrower to collect the
Obligations without any prior recourse to the Collateral.
9.2 NO IMPLIED WAIVERS. No act, failure or delay by the Lender shall
constitute a waiver of any of its rights and remedies. No single or partial
waiver by the Lender of any provision of this Agreement or any other Loan
Document, or of breach or default hereunder or thereunder, or of any right or
remedy which the Lender may have, shall operate as a waiver of any other
provision, breach, default, right or remedy or of the same provision, breach,
default, right or remedy on a future occasion. No waiver by the Lender shall
affect its rights to require strict performance of this Agreement.
9.3 SEVERABILITY. If any provision of this Agreement shall be
prohibited or invalid, under applicable law, it shall be is effective only to
such extent, without invalidating the remainder of this Agreement.
9.4 GOVERNING LAW. This Agreement shall be deemed to have been made in
the State of Illinois and shall be governed by and interpreted in accordance
with the laws of such state, except that no doctrine of choice of law shall
be used to apply the laws of any other state or jurisdiction.
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9.5 OTHER SECURITY AND GUARANTIES. The Lender may, without notice or
demand and without affecting the Borrower's obligations hereunder, from time
to time: (a) take from any Person and hold collateral (other than the
Collateral) for the payment of all or any part of the Obligations and
exchange, enforce or release such collateral or any part thereof; and (b)
accept and hold any endorsement or guaranty of payment of all or any part of
the Obligations and release or substitute any such endorser or guarantor, or
any Person who has given any Lien in any other collateral as security for the
payment of all or any part of the Obligations, or any other Person in any way
obligated to pay all or any part of the Obligations.
9.6 FEES AND EXPENSES. The Borrower shall pay to the Lender on demand
costs and expenses (including attorneys' and paralegals' fees and
disbursements) paid or incurred to obtain payment of the Obligations, enforce
the Security Interest, sell or otherwise realize upon the Collateral, and
otherwise enforce the provisions of the Loan Documents, or to defend any
claims made or threatened against the Lender arising of the transactions
contemplated hereby (including without limitation, preparations for and
consultations concerning any such matters). The foregoing shall not be
construed to limit any other provisions of the Loan Documents regarding costs
and expenses to be paid by the Borrower. Except as otherwise provided herein,
all notices, demands and requests that either party is required or elects to
give to the other shall be in writing, shall be delivered personally against
receipt, or sent by recognized overnight courier service, or mailed by
registered or certified mail, return receipt requested, postage prepaid, and
shall be addressed to the party to be notified as follows:
If to the Lender: DBAE Venture, LLC
650 Dundee Road, Suite 460
Northbrook, Illinois 60062
Attention: Felger, L.L.C., Manager
If to the Borrower: Lamar Investments, Inc.
650 Dundee Road, Suite 460
Northbrook, Illlinois 60062
Attention: Leonard B. Feldman
or to such other address as each party may designate for itself by like
notice. Any such notice, demand, or request shall be deemed given when
received, if personally delivered or sent by overnight courier, or when
deposited in the United States mails, postage paid, if sent by registered or
certified mail.
9.7 WAIVER OF NOTICES. Unless otherwise expressly provided herein, the
Borrower waives presentment, protest and notice of demand or dishonor and
protest as to any instrument, as well as any and all other notices to which
it might otherwise be entitled. No notice to or demand on the Borrower which
the Lender may elect to give shall entitle the Borrower to any or further
notice or demand in the same, similar or other circumstances.
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9.8 WARRANTS. The Borrower agrees to assign to Lender one-third of the
Warrants to purchase Common Stock of DBC when, as and if received by Borrower
pursuant to the terms of the DBC Credit Agreement.
9.9 BINDING EFFECT; ASSIGNMENT. The provisions of this Agreement shall
be binding upon and inure to the benefit of the respective representatives,
successors and assigns of the parties hereto; provided, however, that no
interest herein may be assigned by the Borrower without the prior written
consent of the Lender. The rights and benefits of the Lender hereunder
shall, if the Lender so agrees, inure to any party acquiring any interest in
the Obligations or any part thereof.
9.10 MODIFICATION. This Agreement is intended by the Borrower and the
Lender to be the final, complete, and exclusive expression of the agreement
between them. This Agreement supersedes any and all prior oral or written
agreements relating to the subject matter hereof. No modification,
rescission, waiver, release, or amendment of any provision of this Agreement
shall be made, except by a written agreement signed by the Borrower and a
duly authorized officer of the Lender.
9.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and by the Lender and the Borrower in separate counterparts,
each of which shall be an original, but all of which shall together
constitute one and the same agreement.
9.12 CAPTIONS. The captions contained in this Agreement are for
convenience only, are without substantive meaning and should not be construed
to modify, enlarge, or restrict any provision.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
LAMAR INVESTMENTS, INC.
By: /s/ Gary I. Levenstein
---------------------------
Title: Attorney-in-Fact for Gerrard
Feldman, Pres. of Lamar Investments, Inc.
DBAE VENTURE, LLC
By: FELGER, L.L.C., as Manager
----------------------------
By: /s/ Stephen N. Engberg
-----------------------------
Title: Attorney-in-Fact for Douglas A. Gerrard
Administrative Member of Felger, L.L.C.
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EXHIBIT A
PERMITTED LIENS
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AGREEMENT
AGREEMENT, dated as of April 28, 1998, by and between each of the
persons named on the signature pages hereto.
WHEREAS, on August 19, 1997, a Schedule 13D (the "Schedule 13D"),
executed by Douglas A. Gerrard ("Gerrard"), was filed with the Securities and
Exchange Commission (the "Commission") on behalf of a "group" (the "Group")
with respect to the beneficial ownership of shares of common stock (the
"Common Stock") of Dominion Bridge Corporation (the "Company") for purposes
of Rule 13d-1 and Schedule 13D promulgated by the Commission; and
WHEREAS, the Schedule 13D was amended prior to the date hereof to
disclose additional members of the Group and other relevant events and
transactions; and
WHEREAS, each of the undersigned constitutes an additional member of the
Group.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. An amended statement containing the information required by
Schedule 13D shall be prepared with respect to the respective interests in
shares of Common Stock held by the undersigned (the "Amendment"). Each of
the undersigned shall be responsible for the completeness and accuracy
concerning it contained therein, but shall not be responsible for the
completeness and accuracy of the information concerning any other party
contained therein, except to the extent that it knows or has reason to
believe that such information is inaccurate.
2. Gerrard shall be designated as the person authorized to receive
notices and communications with respect to the Amendment and any additional
amendments to the Schedule 13D.
3. Each of the undersigned hereby constitutes and appoints Douglas A.
Gerrard its true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution for it and in its name, place and stead, in
any and all capacities, to sign the Amendment and any additional amendments
to the Schedule 13D, and other documents in connection therewith, to be filed
with the Commission, granting unto said attorney-in-fact and agent all power
and authority to do and perform each and every act requisite and necessary to
be done, as fully to all intents and purposes as he or it might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
4. This Agreement may be executed in counterparts, each of which taken
together shall constitute one and the same instrument.
