(Multicurrency
¾
Cross
Border)
dated as of
November 12, 2008
Susquehanna
Bank and Casie Ecology Oil Salvage, Inc., MidAtlantic Recycling
Technologies, Inc., and Rezultz, Inc. have entered and/or
anticipate entering into one or more transactions (each a
“Transaction”) that are or will be governed by this
Master Agreement, which includes the schedule (the
“Schedule”), and the documents and other confirming
evidence (each a “Confirmation”) exchanged between the
parties confirming those Transactions.
Accordingly,
the parties agree as follows: ¾
(a)
Definitions. The terms defined in Section 14 and
in the Schedule will have the meanings therein specified for the
purpose of this Master Agreement.
(b)
Inconsistency. In the event of any inconsistency
between the provisions of the Schedule and the other provisions of
this Master Agreement, the Schedule will prevail. In the event of
any inconsistency between the provisions of any Confirmation and
this Master Agreement (including the Schedule), such Confirmation
will prevail for the purpose of the relevant
Transaction.
(c)
Single Agreement. All Transactions are entered into
in reliance on the fact that this Master Agreement and all
Confirmations form a single agreement between the parties
(collectively referred to as this “Agreement”), and the
parties would not otherwise enter into any Transactions.
(i) Each
party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments
under this Agreement will be made on the due date for value on that
date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in
this Agreement.
(iii) Each
obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or
Potential Event of Default with respect to the other party has
occurred and is continuing, (2) the condition precedent that
no Early Termination Date in respect of the relevant Transaction
has occurred or been effectively designated and (3) each other
applicable condition precedent specified in this
Agreement.
(b)
Change of Account. Either party may change its
account for receiving a payment or delivery by giving notice to the
other party at least five Local Business Days prior to the
scheduled date for the payment or delivery to which such change
applies unless such other party gives timely notice of a reasonable
objection to such change.
(c)
Netting. If on any date amounts would otherwise be
payable: ¾
(i) in
the same currency; and
(ii) in
respect of the same Transaction,
by each
party to the other, then, on such date, each party’s
obligation to make payment of any such amount will be automatically
satisfied and discharged and, if the aggregate amount that would
otherwise have been payable by one party exceeds the aggregate
amount that would otherwise have been payable by the other party,
replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party
the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties
may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions,
regardless of whether such amounts are payable in respect of the
same Transaction. The election may be made in the Schedule or a
Confirmation by specifying that subparagraph (ii) above will
not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case
subparagraph (ii) above will not, or will cease to, apply to
such Transactions from such date). This election may be made
separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties
make and receive payments or deliveries.
(d)
Deduction or Withholding for Tax.
(i)
Gross-up. All payments under this Agreement will be
made without any deduction or withholding for or on account of any
Tax unless such deduction or withholding is required by any
applicable law, as modified by the practice of any relevant
governmental revenue authority, then in effect. If a party is so
required to deduct or withhold, then that party (“X”)
will: ¾
(1) promptly
notify the other party (“Y”) of such
requirement;
(2) pay
to the relevant authorities the full amount required to be deducted
or withheld (including the full amount required to be deducted or
withheld from any additional amount paid by X to Y under this
Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly
forward to Y an official receipt (or a certified copy), or other
documentation reasonably acceptable to Y, evidencing such payment
to such authorities; and
(4) if
such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y
to the extent that it would not be required to be paid but
for: ¾
(A) the
failure by Y to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the
failure of a representation made by Y pursuant to Section 3(f) to
be accurate and true unless such failure would not have occurred
but for (I) any action taken by a taxing authority, or brought
in a court of competent jurisdiction, on or after the date on which
a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or
(II) a Change in Tax Law.
2
(1) X
is required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, to make any deduction
or withholding in respect of which X would not be required to pay
an additional amount to Y under Section 2(d)(i)(4);
(2) X
does not so deduct or withhold; and
(3) a
liability resulting from such Tax is assessed directly against
X,
then,
except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the
amount of such liability (including any related liability for
interest, but including any related liability for penalties only if
Y has failed to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d)).
(e)
Default Interest; Other Amounts. Prior to the
occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party that defaults in the
performance of any payment obligation will, to the extent permitted
by law and subject to Section 6(c), be required to pay
interest (before as well as after judgment) on the overdue amount
to the other party on demand in the same currency as such overdue
amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the
Default Rate. Such interest will be calculated on the basis of
daily compounding and the actual number of days elapsed. If, prior
to the occurrence or effective designation of an Early Termination
Date in respect of the relevant Transaction, a party defaults in
the performance of any obligation required to be settled by
delivery, it will compensate the other party on demand if and to
the extent provided for in the relevant Confirmation or elsewhere
in this Agreement.
Each party
represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in
Section 3(f), at all times until the termination of this
Agreement) that: ¾
(a)
Basic Representations.
(i)
Status. It is duly organized and validly existing
under the laws of the jurisdiction of its organization or
incorporation and, if relevant under such laws, in good
standing;
(ii)
Powers. It has the power to execute this Agreement
and any other documentation relating to this Agreement to which it
is a party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this Agreement to
deliver and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is
a party and has taken all necessary action to authorize such
execution, delivery and performance;
(iii)
No Violation or Conflict. Such execution, delivery
and performance do not violate or conflict with any law applicable
to it, any provision of its constitutional documents, any order or
judgment of any court or other agency of government applicable to
it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets;
(iv)
Consents. All governmental and other consents that
are required to have been obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party
have been obtained and are in full force and effect and all
conditions of any such consents have been complied with;
and
(v)
Obligations Binding. Its obligations under this
Agreement and any Credit Support Document to which it is a party
constitute its legal, valid and binding obligations, enforceable in
accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors’ rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in
equity or at law)).
3
(b)
Absence of Certain Events. No Event of Default or
Potential Event of Default or, to its knowledge, Termination Event
with respect to it has occurred and is continuing and no such event
or circumstance would occur as a result of its entering into or
performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c)
Absence of Litigation. There is not pending or, to
its knowledge, threatened against it or any of its Affiliates any
action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator
that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under
this Agreement or such Credit Support Document.
(d)
Accuracy of Specified Information. All applicable
information that is furnished in writing by or on behalf of it to
the other party and is identified for the purpose of this Section
3(d) in the Schedule is, as of the date of the information, true,
accurate and complete in every material respect.
(e)
Payer Tax Representation. Each representation
specified in the Schedule as being made by it for the purpose of
this Section 3(e) is accurate and true.
(f)
Payee Tax Representations. Each representation
specified in the Schedule as being made by it for the purpose of
this Section 3(f) is accurate and true.
Each party
agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support
Document to which it is a party: ¾
(a)
Furnish Specified Information. It will deliver to the
other party or, in certain cases under subparagraph
(iii) below, to such government or taxing authority as the
other party reasonably directs: ¾
(i) any
forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any
other documents specified in the Schedule or any Confirmation;
and
(iii) upon
reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to
allow such other party or its Credit Support Provider to make a
payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account of
any Tax or with such deduction or withholding at a reduced rate (so
long as the completion, execution or submission of such form or
document would not materially prejudice the legal or commercial
position of the party in receipt of such demand), with any such
form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required
certification,
in each
case by the date specified in the Schedule or such Confirmation or,
if none is specified, as soon as reasonably practicable.
(b)
Maintain Authorizations. It will use all reasonable
efforts to maintain in full force and effect all consents of any
governmental or other authority that are required to be obtained by
it with respect to this Agreement or any Credit Support Document to
which it is a party and will use all reasonable efforts to obtain
any that may become necessary in the future.
(c)
Comply with Laws. It will comply in all material
respects with all applicable laws and orders to which it may be
subject if failure so to comply would materially impair its ability
to perform its obligations under this Agreement or any Credit
Support Document to which it is a party.
4
(d)
Tax Agreement. It will give notice of any failure of
a representation made by it under Section 3(f) to be accurate and
true promptly upon learning of such failure.
(e)
Payment of Stamp Tax. Subject to Section 11, it
will pay any Stamp Tax levied or imposed upon it or in respect of
its execution or performance of this Agreement by a jurisdiction in
which it is incorporated, organized, managed and controlled, or
considered to have its seat, or in which a branch or office through
which it is acting for the purpose of this Agreement is located
(“Stamp Tax Jurisdiction”) and will indemnify the other
party against any Stamp Tax levied or imposed upon the other party
or in respect of the other party’s execution or performance
of this Agreement by any such Stamp Tax Jurisdiction which is not
also a Stamp Tax Jurisdiction with respect to the other
party.
5. Events
of Default and Termination Events
(a)
Events of Default. The occurrence at any time with
respect to a party or, if applicable, any Credit Support Provider
of such party or any Specified Entity of such party of any of the
following events constitutes an event of default (an “Event
of Default”) with respect to such party:—
(i)
Failure to Pay or Deliver. Failure by the party to
make, when due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) required to be made by it if such
failure is not remedied on or before the third Local Business Day
after notice of such failure is given to the party;
(ii)
Breach of Agreement. Failure by the party to comply
with or perform any agreement or obligation (other than an
obligation to make any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) or to give notice of a
Termination Event or any agreement or obligation under
Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or
performed by the party in accordance with this Agreement if such
failure is not remedied on or before the thirtieth day after notice
of such failure is given to the party;
(iii)
Credit Support Default.
(1) Failure
by the party or any Credit Support Provider of such party to comply
with or perform any agreement or obligation to be complied with or
performed by it in accordance with any Credit Support Document if
such failure is continuing after any applicable grace period has
elapsed;
(2) the
expiration or termination of such Credit Support Document or the
failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the
party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv)
Misrepresentation. A representation (other than a
representation under Section 3(e) or (f)) made or repeated or
deemed to have been made or repeated by the party or any Credit
Support Provider of such party in this Agreement or any Credit
Support Document proves to have been incorrect or misleading in any
material respect when made or repeated or deemed to have been made
or repeated;
(v)
Default under Specified Transaction. The party, any
Credit Support Provider of such party or any applicable Specified
Entity of such party (1) defaults under a Specified
Transaction and, after giving effect to any applicable notice
requirement or grace period, there occurs a liquidation of, an
acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to
any applicable notice requirement or grace period, in making any
payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of, a Specified
Transaction (or such default continues for at least three Local
Business Days if there is no applicable notice requirement or grace
period) or (3) disaffirms, disclaims, repudiates or rejects,
in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it
or act on its behalf);
5
(vi)
Cross Default. If “Cross Default” is
specified in the Schedule as applying to the party, the occurrence
or existence of (1) a default, event of default or other
similar condition or event (however described) in respect of such
party, any Credit Support Provider of such party or any applicable
Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them
(individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule)
which has resulted in such Specified Indebtedness becoming, or
becoming capable at such time of being declared, due and payable
under such agreements or instruments, before it would otherwise
have been due and payable or (2) a default by such party, such
Credit Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date
thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after giving
effect to any applicable notice requirement or grace
period);
(vii)
Bankruptcy. The party, any Credit Support Provider of
such party or any applicable Specified Entity of such
party:—
(1) is
dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes insolvent or is unable to pay its debts or
fails or admits in writing its inability generally to pay its debts
as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its
creditors; (4) institutes or has instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or any
other relief under any bankruptcy or insolvency law or other
similar law affecting creditors’ rights, or a petition is
presented for its winding-up or liquidation, and, in the case of
any such proceeding or petition instituted or presented against it,
such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for relief or the
making of an order for its winding-up or liquidation or (B) is
not dismissed, discharged, stayed or restrained in each case within
30 days of the institution or presentation thereof;
(5) has a resolution passed for its winding-up, official
management or liquidation (other than pursuant to a consolidation,
amalgamation or merger); (6) seeks or becomes subject to the
appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official
for it or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all its
assets or has a distress, execution, attachment, sequestration or
other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter;
(8) causes or is subject to any event with respect to it
which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses
(1) to (7) (inclusive); or (9) takes any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii)
Merger Without Assumption. The party or any Credit
Support Provider of such party consolidates or amalgamates with, or
merges with or into, or transfers all or substantially all its
assets to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer:—
(1) the
resulting, surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under
this Agreement or any Credit Support Document to which it or its
predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the
benefits of any Credit Support Document fail to extend (without the
consent of the other party) to the performance by such resulting,
surviving or transferee entity of its obligations under this
Agreement.
6
(b)
Termination Events. The occurrence at any time with
respect to a party or, if applicable, any Credit Support Provider
of such party or any Specified Entity of such party of any event
specified below constitutes an Illegality if the event is specified
in (i) below, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is
specified in (iii) below, and if specified to be applicable, a
Credit Event
Upon
Merger if the event is specified pursuant to (iv) below or an
Additional Termination Event if the event is specified pursuant to
(v) below:—
(i)
Illegality. Due to the adoption of, or any change in,
any applicable law after the date on which a Transaction is entered
into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority with
competent jurisdiction of any applicable law after such date, it
becomes unlawful (other than as a result of a breach by the party
of Section 4(b)) for such party (which will be the Affected
Party):—
(1) to
perform any absolute or contingent obligation to make a payment or
delivery or to receive a payment or delivery in respect of such
Transaction or to comply with any other material provision of this
Agreement relating to such Transaction; or
(2) to
perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or
such Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii)
Tax Event. Due to (x) any action taken by a
taxing authority, or brought in a court of competent jurisdiction,
on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect
to a party to this Agreement) or (y) a Change in Tax Law, the
party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other
party an additional amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under
Section 2(e), 6(d)(ii) or 6 (e)) or (2) receive a payment from
which an amount is required to be deducted or withheld for or on
account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid
in respect of such Tax under Section 2(d)(i)(4) (other than by
reason of Section 2(d)(i)(4)(A) or (B));
(iii)
Tax Event Upon Merger. The party (the “Burdened
Party”) on the next succeeding Scheduled Payment Date will
either (1) be required to pay an additional amount in respect
of an Indemnifiable Tax under Section 2(d)(i)(4) (except in
respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or
(2) receive a payment from which an amount has been deducted
or withheld for or on account of any Indemnifiable Tax in respect
of which the other party is not required to pay an additional
amount (other than by reason of Section 2(d)(i)(4)(A) or (B)),
in either case as a result of a party consolidating or amalgamating
with, or merging with or into, or transferring all or substantially
all its assets to, another entity (which will be the Affected
Party) where such action does not constitute an event described in
Section 5(a)(viii);
(iv)
Credit Event Upon Merger. If “Credit Event Upon
Merger” is specified in the Schedule as applying to the
party, such party (“X”), any Credit Support Provider of
X or any applicable Specified Entity of X consolidates or
amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action
does not constitute an event described in Section 5(a)(viii)
but the creditworthiness of the resulting, surviving or transferee
entity is materially weaker than that of X, such Credit Support
Provider or such Specified Entity, as the case may be, immediately
prior to such action (and, in such event, X or its successor or
transferee, as appropriate, will be the Affected Party);
or
(v)
Additional Termination Event. If any
“Additional Termination Event” is specified in the
Schedule or any Confirmation as applying, the occurrence of such
event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c)
Event of Default and Illegality. If an event or
circumstance which would otherwise constitute or give rise to an
Event of Default also constitutes an Illegality, it will be treated
as an Illegality and will not constitute an Event of
Default.
7
(a)
Right to Terminate Following Event of Default. If at
any time an Event of Default with respect to a party (the
“Defaulting Party”) has occurred and is then
continuing, the other party (the “Non-defaulting
Party”) may, by not more than 20 days notice to the
Defaulting Party specifying the relevant Event of Default,
designate a day not earlier than the day such notice is effective
as an Early Termination Date in respect of all outstanding
Transactions. If, however, “Automatic Early
Termination” is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding
Transactions will occur immediately upon the occurrence with
respect to such party of an Event of Default specified in
Section 5(a)(vii)(1), (3), (5), (6) or, to the extent
analogous thereto, (8), and as of the time immediately preceding
the institution of the relevant proceeding or the presentation of
the relevant petition u
|
