THIS TERM LOAN AGREEMENT (this
“Agreement”), is made as of the 12th day of November,
2008, by and among SUSQUEHANNA BANK , a Pennsylvania
chartered bank (the “Bank”), as lender and by CASIE
ECOLOGY OIL SALVAGE, INC., a New Jersey corporation with a
principal office at 3209 North Mill Rd., Vineland, NJ 08360,
MIDATLANTIC RECYCLING TECHNOLOGIES, INC. , a Delaware
corporation with a principal office at 3137 Chammings Court,
Vineland, NJ 08360, and REZULTZ, INCORPORATED , a New Jersey
corporation with a principal office at 3209 North Mill Rd.,
Vineland, NJ 08360, with joint and several liability (each
individually a “Borrower” or “Obligor” and,
collectively, “Borrower” or
“Obligors”)
The Bank and the Obligors desire to set forth
the terms and conditions under which the Bank will make available
and/or extend to the Borrower certain credit facilities to be used
for the purposes specified in this Agreement and upon the following
conditions. Accordingly, the Bank and the Obligors, each intending
to be legally bound hereby, agree as follows:
1.1 Affiliate .
“Affiliate” shall mean any Subsidiary of the Borrower
and any Person or entity that, now or hereafter, directly or
indirectly through one or more intermediaries, controls, is
controlled by or is under common ownership or control with the
Borrower. For purposes of this definition, the terms
“control,” “controls” and
“controlled” shall refer to the power to determine the
management or policies of a Person, whether resulting from an
official position or capacity with such Person, direct or indirect
beneficial ownership of at least twenty percent (20%) of the voting
securities or other equity interests of such Person, or
otherwise.
1.2 Agreement .
“Agreement” shall mean this Term Loan Agreement,
together with all exhibits, amendments, modifications and
supplements hereto as may be in effect from time to
time.
1.3 Bank . “Bank” shall
have the meaning specified in the initial paragraph of this
Agreement, together with its successors and assigns.
1.4 Borrower . “Borrower”
shall have the meaning specified in the initial paragraph of this
Agreement, together with its successors and assigns.
1.5 Business Day . “Business
Day” shall mean any day other than a Saturday, Sunday, or
other day on which commercial banks in New Jersey, are authorized
or required to close under the laws of the State of New
Jersey.
1.6 Closing . “Closing”
shall mean the execution and delivery to the Bank of all of the
documents and instruments required by the terms of this Agreement
and the other Loan Documents and the closing of the transactions
contemplated by this Agreement and the other Loan
Documents.
1.7 Closing Date . “Closing
Date” shall mean the date on which the Closing takes
place.
1.8 Collateral .
“Collateral” shall mean, collectively, the Mortgaged
Property and any real, personal or mixed property interests of
Borrower or any other Obligor (but specifically excluding the
Revolver Collateral and the Excluded Equipment, which shall not
constitute Collateral hereunder and which are not subject to any
Encumbrance in favor of the Bank) subject to an Encumbrance in
favor of Bank as Security for the Term Loan. The Collateral shall
also secure the Borrower’s Hedging Obligations.
1.9 Commitment .
“Commitment” shall mean that certain Commitment Letter
entered into by and among the Bank and the Borrowers and Guarantor
dated October 6, 2008 concerning this Term Loan.
1.10 Contract Rate . “Contract
Rate” shall mean the interest rate set forth in
Article II of this Agreement.
1.11 Covenant Compliance Certificate .
“Covenant Compliance Certificate” shall mean that
certain form of covenant compliance certificate set forth herein as
Exhibit “A”.
1.12 Default . “Default”
shall mean the occurrence of any fact, condition or event which
with the giving of notice or lapse of time or both, would be an
Event of Default under this Agreement.
1.13 Default Rate . “Default
Rate” shall mean the interest rate charged above and beyond
the Contract Rate upon an Event of Default and as further defined
in Article II of this Agreement.
1.14 Encumbrances .
“Encumbrances” shall mean, as to any Person, any
mortgage, lien, pledge, adverse claim, charge, security interest or
other encumbrance in or on, or any interest or title of any vendor,
lessor, lender to, or other secured party of the Person under any
conditional sale or other title retention agreement or Capital
Lease with respect to, any property or asset of the
Person.
1.15 Environmental Laws .
“Environmental Laws” shall mean the Federal
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. §§ 9601, et. seq., the Federal
Resource Conservation and Recovery Act, 42 U.S.C.
§§ 6901 et. seq ., the Hazardous Materials
Transportation Act, 49 U.S.C. §§ 1801, et.
seq., all other federal, state and local environmental or
health laws applicable to any Obligor or its business, operations
or assets now or hereafter enacted, and all rules, regulations and
orders adopted or promulgated pursuant thereto from time to
time.
1.16 Event of Default . “Event of
Default” shall have the meaning set forth in
Article VIII of this Agreement.
1.17 Excluded Equipment .
“Excluded Equipment” shall mean, collectively, the
Daewoo Excavator Doosan DX340 Serial No. 5201, the Doosan MEGA
400V Serial No. V1367, and the Komatsu Hydraulic Excavator
Model PC308USLC-3 Serial No. 20269.
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1.18 Financial Statements .
“Financial Statements” shall mean the consolidated and
consolidating balance sheet, statements of income and retained
earnings and statements of cash flow of the Borrower, Guarantor,
and their Subsidiaries and Affiliates and all other Financial
Statements of Borrower, Guarantor, and their Subsidiaries and
Affiliates, audited by Markum & Kliegman LLP or such other
certified public accountant acceptable to Bank, submitted and to be
submitted to the Bank hereunder, and in form and content acceptable
to Bank.
1.19 GAAP . “GAAP” shall
mean generally accepted accounting principles, as in effect at the
time of application to the provisions hereof, and consistently
applied.
1.20 Guarantor .
“Guarantor” shall mean Pure Earth, Inc. , a
Delaware corporation with a principal office at One Neshaminy
Interplex, Suite 201, Trevose, PA 19053, together with
its successors and assigns.
1.21 Guaranty . “Guaranty”
shall mean any guaranty or agreement to be a surety or other
contingent liability (other than any endorsement for collection or
deposit in the ordinary course of business), direct or indirect,
with respect to any obligation of another Person.
1.22 Guaranty Agreement .
“Guaranty Agreement” shall mean the Guaranty, dated the
same date of this Agreement, in form and substance satisfactory to
the Bank, by Guarantor as required by Article V of this
Agreement, together with all amendments, modifications, exhibits
and schedules thereto as may be in effect from time to
time.
1.23 Hazardous Materials .
“Hazardous Materials” shall mean all materials of any
kind which are flammable, explosive, toxic, radioactive or
otherwise hazardous to animal or plant life or the environment,
including, without limitation, “hazardous wastes,”
“hazardous substances” and “contaminants,”
as such terms are defined by Environmental Laws.
1.24 Hedging Contracts . “Hedging
Contracts” shall mean, interest rate swap agreements
(including, but not limited to an ISDA master swap agreement),
interest rate cap agreements and interest rate collar or floor
agreements, or any other agreements or arrangements entered into
between the Borrower and the Lender and designed to protect the
Borrower against fluctuations in interest rates or currency
exchange rates.
1.25 Hedging Obligations .
“Hedging Obligations” shall mean, with respect to the
Borrower, all liabilities of the Borrower to the Lender under
Hedging Contracts.
1.26 Historical Financial Statements .
“Historical Financial Statements” shall have the
meaning set forth in Article IV of this Agreement.
1.27 Indebtedness .
“Indebtedness” shall mean any obligation for borrowed
money, including, without limitation:
(a) any obligation owed for all or any part
of the purchase price of property or other assets or for the cost
of property or other assets constructed or of improvements thereto,
other than accounts payable included in current liabilities and
incurred in respect of property purchased in the ordinary course of
business;
(b) any capital lease obligation;
and
(c) any reimbursement obligations and other
obligations under any letter of credit, currency swap agreement,
Hedging Contract, or any forward sale or purchase agreement for
foreign currencies.
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1.28 Intercompany Loans .
“Intercompany Loans” shall mean intercompany loans or
advances from Guarantor (or any Subsidiaries thereof) or any
Obligor to any of the other Obligors or Guarantor (or any
Subsidiaries thereof).
1.29 Judgment . “Judgment”
shall have the meaning set forth in Article VIII of this
Agreement.
1.30 Late Charge . “Late
Charge” shall mean the charge assessed by the Bank for
failure to timely make payments when due and as further defined in
Article II of this Agreement.
1.31 Liabilities .
“Liabilities” shall mean all liabilities which, in
accordance with GAAP should be classified as liabilities of the
Obligor.
1.32 LIBOR Rate . “LIBOR
Rate” means “Index”, as such term is defined
under and contemplated by the Note.
1.33 LIBOR Rate Loans . “LIBOR
Rate Loans” means the loan(s) for the period(s) when the rate
of interest applicable to the loan(s) is calculated by reference to
the LIBOR Rate.
1.34 Loan Documents . “Loan
Documents” shall mean including without limitation, this
Agreement, the Note, the Security Agreement, the Mortgages, the
Guaranty Agreement, the Hedging Contracts (if any), and all other
agreements, amendments, certificates, financing statements,
schedules, reports, notices, and exhibits now or hereafter executed
or delivered in connection with any of the foregoing, as may be in
effect from time to time and as required pursuant to Article V
of this Agreement.
1.35 Mortgage . “Mortgage”
shall mean a mortgage, assignment of rents and leases and security
agreement, given by one or more of the Obligors as mortgagor in
favor of the Bank, as mortgagee, in form and substance satisfactory
to the Bank, pursuant to which the Obligor shall grant to the Bank
mortgage liens on the real property set forth therein, as required
pursuant to Article V hereof, together with all amendments,
modifications, supplements, exhibits and schedules thereto as may
be in effect from time to time.
1.36 Note . “Note” shall
refer to that certain Term Loan Note dated on or about the date
hereof given by the Borrower in favor of the Bank and shall have
the meaning set forth in Article II of this Agreement, and
shall include all replacements, supplements, modifications,
amendments extensions, and renewals thereof.
1.37 Obligations .
“Obligations” shall mean the following obligations of
each Obligor:
(a) to pay the principal, interest,
commitment fees and any other liabilities of such Obligor to the
Bank under this Agreement, the Note, the Hedging Contracts, and the
other Loan Documents in accordance with the terms
thereof;
(b) to satisfy all of the other direct or
indirect liabilities of such Obligor to the Bank hereunder, whether
now existing or hereafter incurred, whether or not evidenced by any
note or other instrument, matured or unmatured, direct, absolute or
contingent, joint or several, including any extensions,
modifications, renewals and substitutions of the Term Loan and
whether arising out of overdrafts on deposit or other accounts or
electronic funds transfers (whether through automated clearing
houses or otherwise) or out of the Bank’s non-receipt of or
inability to collect funds or otherwise not being made whole in
connection with depository transfer check or other
similar
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arrangements,
whether direct or indirect (including those acquired by assignment
or participation), absolute or contingent, joint or several due or
to become due, now existing or hereafter arising;
(c) to repay the Bank all amounts advanced
by the Bank hereunder on behalf of any Obligor, including, but
without limitation, advances for principal or interest payments to
prior secured parties, mortgagors or lienors, or for taxes, levies,
insurance, rent, wages, repairs to or maintenance or storage of any
collateral; and
(d) to reimburse the Bank, on demand, for
all of the Bank’s expenses and costs, including the
reasonable fees and expenses of its counsel, in connection with the
negotiation, preparation, administration, amendment, modification,
or enforcement of this Agreement and the Loan Documents;
provided that , Obligors shall not be obligated to
pay in excess of $9,000 for the fees and expenses of Bank counsel
in connection with the negotiation and preparation of this
Agreement and the Loan Documents.
1.38 Obligors . “Obligors”
shall have the meaning specified in the initial and opening
paragraph of this Agreement, together with their successors and
assigns.
1.39 Permitted Indebtedness .
“Permitted Indebtedness” shall mean:
(a) the
Term Loan and any subsequent Indebtedness owed to the
Bank;
(b) existing Indebtedness disclosed on the
attached Schedule 1.39 entitled “Permitted
Indebtedness”;
(d) Purchase money indebtedness related to
the acquisition of machinery and equipment not exceeding the lesser
of cost or fair market value thereof, not exceeding $200,000 per
purchase and $500,000 in the aggregate during any fiscal
year;
(e) Any
now existing or hereafter incurred Indebtedness to a Revolver
Lender;
(f) Indebtedness under Hedging Contracts;
and
(g) indebtedness which is subject to the
prior written approval of the Bank.
1.40 Person . “Person”
shall mean any individual, or artificial entity including, without
limitation, any corporation, partnership, association, joint-stock
company, trust, limited liability company, unincorporated
organization, joint venture, court or governmental or political
subdivision or agency thereof.
1.41 Plan . “Plan” shall
have the meaning given to such term in Article IV of this
Agreement.
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1.42 Related Parties . “Related
Parties” shall mean with respect to any Person, such
Person’s Affiliates and their respective directors, officers,
employees, agents and advisors of such Person and such
Person’s Affiliates.
1.43 Revolver Collateral .
“Revolver Collateral” shall mean all of
Borrower’s (a) Accounts, (b) Inventory,
(c) cash, (d) now owned or hereafter acquired lockbox,
blocked accounts, and any other deposit accounts and deposits
maintained with any financial institution (including the Bank),
into which proceeds of the Revolver Collateral are or may be
deposited, (e) all rights to payments for good sold and/or services
rendered that are or become evidenced by an Instrument,
(f) Supporting Obligations, payment intangibles and Letter of
Credit Rights, (g) credit insurance with respect to Accounts,
(h) all books and records and general intangibles evidencing
or containing information relating to any of the Revolver
Collateral or otherwise necessary or helpful in the collection
thereof or the realization thereon, and (i) all cash and
non-cash Proceeds of all of the foregoing. In further clarification
of the foregoing, the Reserve Account (as defined in section 6.21
herein) and the money balance contained therein shall not
constitute Revolver Collateral. All terms capitalized in this
definition shall have the meaning set forth for such terms in the
Uniform Commercial Code.
1.44 Revolver Lender . “Revolver
Lender” shall mean any lender advancing loans and other
financial accommodations to any Borrower ,which are secured by the
Revolver Collateral, or any portion thereof.
1.45 Security Agreement .
“Security Agreement” shall mean that certain Security
Agreement given by the Borrower as grantor in favor of the Bank as
secured party in connection with the Term Loan granting security
interest in certain Obligors’ assets to the Bank in form and
substance to the Bank together with all amendments, modifications,
renewals, extensions, exhibits and schedules thereto as may be in
effect from time to time.
1.46 Subsidiary .
“Subsidiary” shall mean, as to any designated Person
(i) any corporation, the outstanding shares of which having
sufficient voting power (not depending on the happening of a
contingency) to elect at least a majority of the members of its
board of directors as are up for election at any particular time,
are at the time directly or indirectly owned, by the designated
corporation, or (ii) any partnership of which more than 50% of
the outstanding partnership interests having the power to act as a
general partner of such partnership (irrespective of whether at the
time of any partnership interests other than general partnership
interest of such partnership shall or might have voting power upon
the occurrence of any contingency) are at the time directly or
indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, by one or more other
Subsidiaries of such Person.
1.47 Taxes . “Taxes” shall
have the meaning set forth in Article II of this
Agreement.
1.48 Term Loan . “Term
Loan” shall mean the term loan as evidenced by this
Agreement, the Term Loan Note and other related loan documents
executed in connection with the Term Loan Agreement and any and all
replacements, amendments, extensions and renewals thereof and as
further defined in Article II of this Agreement.
1.49 Uniform Commercial Code .
“Uniform Commercial Code” shall mean the Uniform
Commercial Code of New Jersey, as in effect on the date of this
Agreement.
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2.1 Term Loan . Subject to the terms
of this Agreement, the Bank shall make available and/or extend to
the Borrower on the Closing Date a term loan (the “Term
Loan”) in the amount of Eight Million Dollars ($8,000,000)
for the purpose of (a) refinancing existing debt with Parke
Bank and (b) reimbursing Guarantor for capital
expenditures and working capital advances made by Guarantor to or
on behalf of Borrower, subject to the terms and conditions and in
reliance upon the representations and warranties of the Obligors
set forth in this Agreement.
(a) Term Loan Note . The
Obligations of the Borrower to repay the aggregate outstanding
principal under the Term Loan and to pay accrued interest thereon
together with all renewals, extensions, amendments and restatements
thereof shall be evidenced by that certain Term Loan Note, in form
and substance satisfactory to the Bank, to be executed and
delivered to the Bank concurrently with the execution and delivery
of this Agreement (the “Note”).
(b) Fees . On the Closing
Date, the Borrower will pay to the Bank a non-refundable loan fee
(the “Loan Fee”) in the amount of $40,000.00,
irrespective of the total amount advanced hereunder.
(c) Default Rate of Interest: Late
Charges . Upon an Event of Default and during the
continuance thereof, interest shall accrue on the Obligations at an
annual rate at all times equal to the interest rate in effect in
the Note plus three percent (3.0%) but not more than the maximum
rate allowed by law (the “Default Rate”) and shall
continue to accrue until such time the Obligations are paid in
full. The Default Rate shall continue to apply whether or not
judgment shall be entered on this Note.
If any payment (including without limitation any
regularly scheduled payment or any payment following demand) is not
paid within ten (10) days after it is due, the Borrower will
pay a late charge (the “Late Charge”) as specified
below, regardless of whether the payment due consists of principal
and interest, principal only or interest only: the greater of
(a) 5.0% of the unpaid portion of the payment due, or (b) $25.
The Late Charge shall be in addition to any increase made to the
Default Rate applicable to the outstanding balance hereof as a
result of the failure to pay following failure to make payments of
Obligations when due and payable, as well as in addition to any
other applicable fees, charges and costs.
2.2 Payments and Computations . All
amounts payable by the Borrower to the Bank under this Agreement,
the Note or other Loan Documents shall be paid directly to the Bank
in immediately available same day funds at the address of the Bank
set forth in the Article X hereof or at such other address of
which the Bank shall give notice to the Borrower pursuant to
Article X hereof. The Bank is hereby authorized to charge any
account of the Borrower at the Bank for any payment due by the
Borrower under the Agreement and the Note. All payments under the
Note shall be applied first to accrued interest due and payable
thereunder then to fees and expenses (including attorneys’
fees incurred by the Bank), then to outlays made by Bank for
expenses such as real estate taxes, and then to the reduction of
the outstanding principal balance thereof.
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2.3 Requirements of Law . In the event
that after the date hereof, any adoption of or change in any law,
regulation or treaty or in the interpretation or application
thereof or compliance by the Bank with any request or directive
(whether or not having the force of law) from any central bank or
other governmental authority, agency or instrumentality:
(a) subjects or shall subject the Bank to
any tax of any kind whatsoever with respect to this Agreement, the
loans made hereunder, the other Loan Documents or changes the basis
of taxation of payments to the Bank of principal, commitment fees,
interest or any other amount payable hereunder (except for changes
in the rate of tax on the overall net income of the
Bank);
(b) imposes, modifies or holds or shall
impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, or
deposits or other liabilities in or for the account of, advances or
loans by, or other credit extended by, or any other acquisition of
funds by, any office of the Bank, which reserve, special deposit,
compulsory loan or similar requirement is not otherwise included in
determination of the interest rate hereunder;
(c) imposes or shall impose on the Bank any
other condition; and the result of any of the foregoing is to,
directly or indirectly, increase the cost to the Bank of making,
renewing or maintaining advances or extensions of credit or to
reduce any amount receivable thereunder then, in any such case, the
Borrower shall pay the Bank any additional amounts necessary within
ten (10) business days from the date the Bank notifies Borrower in
writing of the occurrence of any such event, such notice to state,
in reasonable detail, the reasons therefor and the additional
amount required to compensate the Bank for such additional cost or
reduced amount receivable. If the Bank becomes entitled to claim
any additional amounts pursuant to this subsection, it shall notify
the Borrower of the event by reason of which it has become so
entitled. The good faith determination as to any additional amounts
payable pursuant to the foregoing sentence by the Bank shall be
conclusive in the absence of manifest error. The provisions hereof
shall survive the termination of this Agreement and payment of the
Loan and all other amounts payable hereunder.
2.4 No Claims or Defenses . All
payments made to the Bank by the Obligor hereunder, under the Note
or under any of the other Loan Documents will be made without
setoff, counterclaim or other defense. All such payments will be
made free and clear of, and without deduction or withholding for,
any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or any political subdivision or taxing
authority thereof or therein (but excluding, any tax imposed on or
measured by the gross or net income of the Bank (including all
interest, penalties or similar liabilities related thereto)
pursuant to the laws of the United States of America or any
political subdivision thereof, or taxing authority of the United
States of America or any political subdivision thereof, in which
the principal office or applicable lending office of the Bank is
located), and all interest, penalties or similar liabilities with
respect thereto (collectively, together with any amounts payable
pursuant to the next sentence, “Taxes”). If any Taxes
are so levied or imposed, the Obligors agree to pay the full amount
of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due hereunder, under any Note or
under any other Loan Document, after withholding or deduction for
or on account of any Taxes, will not be less than the amount
provided for herein or in such Note. The Obligors will furnish to
the Bank upon request certified copies of tax receipts evidencing
such payment by the Borrower. The Obligors will indemnify and hold
harmless the Bank, and reimburse the Bank upon its written request,
for the amount of any Taxes so levied or imposed and paid or
withheld by the Bank.
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2.5 Right Of Setoff . In addition to
all liens upon and rights of setoff against each and every
Obligor’s money, securities or other property constituting
the Collateral given to the Bank by law, the Bank shall have with
respect to each and every Obligor’s Obligations to the Bank
under this Agreement, the Note and/or the other Loan Documents and
to the extent permitted by law, a contractual possessory security
interest in and a contractual right of setoff against, and each and
every Obligor hereby grants a security interest in, lien upon and
rights to setoff against, and each and every Obligor hereby
assigns, conveys, delivers, pledges and transfers to the Bank each
and every Obligor’s right, title and interest in and to, each
of the Obligor’s deposits, moneys, credits, securities and
other property and proceeds thereof constituting Collateral,
including without limitation any proceeds of Collateral or returned
or unearned premium of insurance with respect to the Collateral now
or hereafter in the possession of or on deposit with, or in transit
to, the Bank or any other direct or indirect Subsidiary, or
Affiliate of the Bank whether held in a general or special account
or deposit, whether held jointly with someone else or whether held
for safekeeping or otherwise, excluding, however, all IRA, Keogh,
escrow and trust accounts and also excluding any and all deposit
accounts (other than the Reserve Account), and any money therein
from time to time, and other assets of the Borrower that comprise
or are a part of the Revolver Collateral, including, without
limitation, the lockbox, the lockbox account and all other deposit
accounts that are or may hereafter be located at the Bank. Every
such security interest and right of setoff may be exercised upon
the occurrence of an Event of Default. Notwithstanding anything to
the contrary contained herein, Bank specifically waives and
disclaims all liens and rights of setoff given to the Bank under
the Loan Documents (including the Hedging Contracts) or by law or
otherwise, in the Revolver Collateral.
2.6 Bank’s Rights . Obligors
hereby authorize the Bank, upon the occurrence of an Event of
Default, at its sole option and discretion, but, in no event is
required to do so or is obligated to: (a) do anything which
Borrower is required but fails to do hereunder within a reasonable
time thereafter, after Bank notifies Borrower of such failure and
provides Borrower an opportunity to correct such failure, and in
particular Bank may, if Borrower fails to do so after notice and an
opportunity to cure, obtain and pay any premiums payable on any
policies of insurance required to be obtained or maintained
hereunder; (b) direct any insurer to make payment of any
insurance proceeds including any returned or unearned premiums,
directly to the Bank and apply such moneys to any Indebtedness or
other amount evidenced hereby in such order or fashion as Bank may
elect; and (c) add any amounts paid or incurred by the Bank
for costs and expenses in accordance with the terms of this
Agreement to the principal amount of the Obligations evidenced by
the Note.
2.7 Continuing Liability . The
liabilities of the Borrower under this Article II shall continue to
be effective or be automatically reinstated, as the case may be, if
at any time payment, in whole or in part, of any of the payments to
the Bank is rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any other Borrower or any other Obligor or
person, or upon or as a result of the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect
to any Borrower or any other Obligor or any substantial part of its
property, or otherwise, all as though such payment had not been
made.
2.8 LIBOR Rate Lending Unlawful . If
the Bank shall reasonably determine (which determination shall,
upon notice thereof to the Borrower be conclusive and binding on
the Borrower) that the introduction of or any change in or in the
interpretation of any law, rule, regulation or guideline, (whether
or not having the force of law) makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful,
for the Bank to make, continue or maintain any LIBOR Rate Loan as,
or to convert any loan into, a LIBOR Rate Loan of a certain
duration, the obligations of the Bank to make, continue, maintain
or convert into any such LIBOR Rate Loan shall, upon such
determination, forthwith be suspended until the Bank shall notify
the Borrower that the circumstances causing such suspension no
longer exist, and all LIBOR Rate Loans of such type shall
automatically convert into a loan to which the Substitute Rate (as
defined in Section 2.9 hereof) applies at the end of the then
current Interest Period with respect thereto or sooner, if required
by such law or assertion. The Bank shall provide the Borrower with
any such law, rule, regulation or guideline that the Bank has
reasonably determined makes it unlawful for the Bank to make,
continue or maintain any LIBOR Rate Loan.
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2.9 Substitute Rate . If the Bank
shall have determined that US dollar deposits in the relevant
amount and for the relevant Interest Period are not available to
the Bank in the London interbank market; or by reason of
circumstances affecting the Bank in the London interbank, adequate
means do not exist for ascertaining the LIBOR Rate applicable
hereunder to a LIBOR Rate Loan of any duration, the LIBOR Rate no
longer adequately reflects the Bank’s cost of funding loans,
then, upon notice from the Bank to the Borrower, the obligations of
the Bank to make or continue any loan as, or to convert any loan
into, a LIBOR Rate Loan of such duration shall forthwith be
suspended until the Bank shall notify the Borrower that the
circumstances causing such suspension no longer exist, and during
the period of any such suspension, another index of annual interest
rates for non-consumer loans determined pursuant to and in
accordance with the Note (the “Substitute Rate”) shall
be used.
2.10 Indemnities . The Borrower agrees
to reimburse the Bank (without duplication) for any increase in the
cost to the Bank, or reduction in the amount of any sum receivable
by the Bank, in respect, or as a result of:
(a) any conversion or repayment or
prepayment of the principal amount of any LIBOR Rate Loan on a date
other than the scheduled last day of the Interest Period applicable
thereto;
(b) any loans not being made as LIBOR Rate
Loan in accordance with the borrowing request thereof;
or
(c) any LIBOR Rate Loan not being continued
as, or converted into, LIBOR Rate Loans in accordance with the
continuation/conversion notice thereof.
(d) any interest costs associated with the
timing of applying any principal and interest payments to the Loan
relative to payments made under any Hedging Obligations;
and
(e) any amounts owing by
the Borrower to Bank under the Hedging Contracts in respect to
Hedging Obligations.
The Bank shall
promptly notify the Borrower in writing of the occurrence of any
such event, such notice to state, in reasonable detail, the reasons
therefore and the additional amount required fully to compensate
the Bank for such increased cost or reduced amount. Such additional
amounts shall be payable by the Borrower to the Bank within thirty
days of its receipt of such notice, and such notice shall, in the
absence of manifest error, be conclusive and binding on the
Borrower. The Borrower understands, agrees and acknowledges the
following: (i) the Bank does not have any obligation to
purchase, sell and/or match funds in connection with the use of
LIBOR Rate as a basis for calculating the rate of interest on a
LIBOR Rate Loan, (ii) the LIBOR Rate may be used merely as a
reference in determining such rate, and (iii) the Borrower has
accepted the LIBOR Rate as a reasonable and fair basis for
calculating such rate and other funding losses incurred by the
Bank.
3.1 Security . The security for
repayment of the Term Loan shall include without limitation the
collateral, guaranties and other documents heretofore,
contemporaneously or hereafter executed and delivered to the Bank
(“Security Documents”) which shall secure the
Obligations. Unless expressly provided to the contrary in
documentation for any other loan or loans, it is the express intent
of the Bank and the Obligors that all Obligations be
cross-collateralized and cross-defaulted, such that collateral
securing any of the Obligations shall secure repayment of all
Obligations and a default under any Obligation shall be a default
under all Obligations .
10
REPRESENTATIONS AND WARRANTIES OF
THE OBLIGORS
In order to induce the Bank to execute and
deliver this Agreement and to make the Term Loan available to the
Borrower, each Obligor represents and warrants to the Bank that, as
of the date hereof:
4.1 Good Standing Of Obligors;
Authorization . The Borrower is a corporation in good
standing in the State of New Jersey and Delaware, as applicable,
and has the power to own its properties and to carry on its
business as now conducted. The Borrower is duly authorized to
execute and deliver the Loan Agreement and the Loan Documents; all
necessary action to authorize the execution and delivery of the
Loan Agreement and Loan Documents has been properly taken and the
Borrower is and will continue to be duly authorized to borrow under
this Loan Agreement and to perform all other terms and provisions
of the Loan Agreement and the Loan Documents.
4.2 Compliance with Laws and Other
Agreements . Except as set forth in Section 4.18 of this
Agreement, each Obligor is in compliance with all laws, rules,
regulations, judgments, decrees, orders, agreements and
requirements which affect in any material way such Obligor, its
assets or the operation of its business and has not received, and
has no knowledge of, any order or notice of any governmental
investigation or of any violation or claim of violation of any law,
regulation, judgment, decree, order, agreement, or other
governmental requirement.
4.3 No Conflict; Governmental
Approvals . The execution, delivery, and performance of
this Agreement and each of the Loan Documents will not
(a) conflict with, violate, constitute a default under, or
result in a breach of any material provision of any applicable law,
rule, regulation, judgment, decree, order, instrument or other
agreement, or (b) conflict with or result in a breach of any
provision of the articles or certificate of incorporation or
bylaws, or regulations if the Obligor is a corporation, its
partnership agreement if the Obligor is a partnership, or its other
organizational documents as applicable; or (c) upon receipt of
the consent of Wells Fargo Bank, National Association, result in a
default or violation of any indenture, mortgage, deed of trust,
franchise, permit, contract, agreement or other instrument to which
it is a party or by which it is bound. No authorization, permit,
consent or approval of or other action by, and no filing,
registration or declaration with, any governmental authority or
regulatory body is required to be obtained or made by any Obligor
for the due execution, delivery and performance of this Agreement
or any of the Loan Documents, (other than filings to perfect the
security granted by it) except such as have been duly obtained or
made prior to the Closing Date and are in full force and effect as
of the Closing Date (copies of which have been delivered to the
Bank on or before the Closing Date). The consummation of this
Agreement and the other Loan Documents and the transactions set
forth herein will not result on any such default or violation or
Event of Default.
4.4 Pending Litigation . There are no
actions, suits, proceedings or governmental investigations pending
or, to the knowledge of the Obligors, threatened against the
Obligors, which could result in a material adverse change in its
business, assets, operations, condition (financial or otherwise) or
results of operations and there is no basis known to the Obligors
for any suit, proceeding or investigation which could result in
such a material adverse change. All pending and threatened material
litigation against the Obligors is listed on t
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