EXHIBIT 10.7
June 14, 0000
X.X. Xxxxxxx Xxxxxx Corp.
0000 X. Xxxxxx Xxxx
Xxxxx 000X
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Re: $10,000,000 SENIOR SECURED REVOLVING CREDIT FACILITY COMMITMENT LETTER
Ladies and Gentlemen:
Please refer to the Credit Agreement dated as of June 30, 2000 (as amended, the
"CREDIT AGREEMENT") among U.S. Plastic Lumber Corp. (the "COMPANY"), various
financial institutions (the "LENDERS") and Bank of America, N.A., as
Administrative Agent. Capitalized terms used but not defined herein shall have
the respective meanings set forth in the Credit Agreement.
The Company has advised the Lenders and the Administrative Agent that it intends
to sell the stock of Clean Earth, Inc. (such sale, the "CEI SALE") and that,
following the CEI Sale, it will need a credit facility (the "AMENDED FACILITY")
in the amount of $10,000,000. The Company has requested that the Lenders and the
Administrative Agent amend, or amend and restate, the Credit Agreement to meet
such need.
Based on the foregoing, the Lenders are willing to offer their respective
commitments to lend up to $4,474,000 (in the case of Bank of America),
$3,354,000 (in the case of LaSalle Bank National Association) and $2,172,000 (in
the case of Union Planters Bank National Association) under the Amended Facility
in accordance with the terms of this letter and the Summary of Terms and
Conditions attached hereto (the "SUMMARY OF TERMS").
The commitments of the Lenders hereunder are subject to the satisfaction of each
of the following conditions precedent in a manner acceptable to us in our sole
discretion: (a) each of the terms and conditions set forth herein and in the
Summary of Terms; (b) our satisfaction with the terms and conditions of the CEI
Sale and the use of the proceeds thereof; (c) the negotiation, execution and
delivery of a definitive amendment to, or amendment and restatement of, the
Credit Agreement consistent with the Summary of Terms and otherwise satisfactory
to us; (d) no change, occurrence or development shall have occurred after the
date hereof that could, in our opinion, have a material adverse effect on the
business, assets, liabilities (actual or contingent), operations, condition
(financial or otherwise) or prospects of the Company (on a consolidated basis);
and (e) our not becoming aware after the date hereof of any information or other
matter with respect to the Company or any of its subsidiaries which in our
judgment is inconsistent in a material and adverse manner with any information
or other matter disclosed to us prior to the date hereof.
You hereby represent, warrant and covenant that: (a) all information, other than
the Projections (defined below), which has been or is hereafter made available
to us by you or any of your representatives in connection with the transactions
contemplated hereby (the "INFORMATION") is and will be complete and correct in
all material respects and does not and will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements contained therein not misleading; and (b) all financial projections
concerning the Company and its subsidiaries that have been or are hereafter made
available to us by you or any of your representatives (the "PROJECTIONS") have
been or will be prepared in good faith based upon assumptions you believe to be
reasonable. You agree to furnish us with such Information and Projections as we
may reasonably request and to supplement the Information and the Projections
from time to time until the closing date for the Amended Facility so that the
representations, warranties and covenants in the preceding sentence are correct
on such closing date.
By acceptance of this offer, you agree to pay all reasonable out-of-pocket fees
and expenses (including reasonable attorneys fees and expenses, the
non-duplicative allocated cost of internal counsel and due diligence expenses)
incurred before or after the date hereof by us in connection with the Amended
Facility.
You agree to indemnify and hold harmless the Administrative Agent and each
Lender and each of their affiliates and their respective directors, officers,
employees, advisors and agents (each, an "INDEMNIFIED PARTY") from and against
(and will reimburse each Indemnified Party as the same are incurred for) any and
all losses, claims, damages, liabilities and expenses (including, without
limitation, the reasonable fees and expenses of counsel and the allocated cost
of internal counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
the Amended Facility or any use made or proposed to be made with the proceeds
thereof, unless and only to the extent that, as to any Indemnified Party, it
shall be determined in a final, nonappealable judgment by a court of competent
jurisdiction that such losses, claims, damages, liabilities or expenses resulted
primarily from the gross negligence or willful misconduct of such Indemnified
Party. In the case of any investigation, litigation or proceeding to which the
indemnity in this paragraph applies, such indemnity shall be effective whether
or not such investigation, litigation or proceeding is brought by you, your
shareholders or creditors or an Indemnified Party and whether or not the Amended
Facility closes. You agree that no Indemnified Party shall have any liability to
you or your subsidiaries or affiliates or to your or their respective security
holders or creditors for any indirect or consequential damages arising out of,
related to or in connection with this letter, the Amended Facility or any other
transaction contemplated herein.
The terms of this letter and the Summary of Terms are confidential and, except
for disclosure on a confidential basis to your accountants and attorneys and
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other professional advisors retained by you in connection with the Amended
Facility or as may be required by law, may not be disclosed in whole or in part
to any other person or entity without our prior written consent. We hereby
consent to your disclosure of this letter to CEI Acquisition Corp. and its
affiliates for purposes of facilitating the CEI Sale.
The provisions of the immediately preceding three paragraphs shall remain in
full force and effect regardless of whether any definitive documentation for the
Amended Facility shall be executed and notwithstanding the termination of this
letter or any commitment or undertaking hereunder; PROVIDED that such provisions
shall be superseded by definitive documentation for the Amended Facility on the
date of the closing of the Amended Facility.
This letter shall be governed by the laws of the State of Illinois. Each of the
parties hereto irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this letter, the Summary of Terms, the
transactions contemplated hereby and thereby or the actions of the
Administrative Agent or any Lender in the negotiation, performance or
enforcement hereof.
This letter may be modified or amended only by the written agreement of all of
the parties hereto. This letter is not assignable by you without our prior
written consent and is intended to be solely for the benefit of the parties
hereto and the Indemnified Parties.
The commitments set forth herein will expire at 5:00 p.m. Chicago time on June
14, 2002 unless you execute this letter and return it to us (by facsimile or
otherwise) prior to that time, whereupon this letter (which may be signed in one
or more counterparts) shall become a binding agreement. Thereafter, the
commitments set forth herein will expire on August 31, 2002, unless definitive
documentation for the Amended Facility is executed and delivered prior to such
date.
We are pleased to have the opportunity to work with you in connection with this
financing.
[Signatures Follow on Next Page]
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Very truly yours,
BANK OF AMERICA, N.A. LASALLE BANK NATIONAL ASSOCIATION
By:_____________________________ By:_______________________________
Title:__________________________ Title: ____________________________
UNION PLANTERS BANK NATIONAL
ASSOCIATION
By:_____________________________
Title:__________________________
Accepted and Agreed to as of June 14, 2002:
U.S. PLASTIC LUMBER CORP.
By:_____________________________
Title:__________________________
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INDICATIVE TERMS AND CONDITIONS JUNE 14, 2002
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U.S. PLASTIC LUMBER CORP.
$10 MILLION SENIOR SECURED CREDIT FACILITY
BORROWER: U.S. Plastic Lumber Corp. ("USPL" or the "Company").
GUARANTORS: All direct and indirect subsidiaries of USPL.
ADMINISTRATIVE
AGENT: Bank of America, N.A. ("Bank of America").
LENDERS: Initially, Bank of America, LaSalle Bank National
Association and Union Planters Bank National
Association.
FACILITY: $10 million senior secured revolving credit facility
(the "Facility") which will include a sublimit for
letters of credit.
PURPOSE: The proceeds of the Facility will be used to provide
ongoing financing for USPL's working capital needs
and general corporate purposes.
SECURITY: The Facility will be secured by a first priority
(subject to customary exceptions to be agreed upon)
perfected security interest in (i) the capital stock
of each of USPL's subsidiaries (direct or indirect)
and (ii) all other present and future assets and
properties of USPL and its subsidiaries, but
excluding the options to purchase certain rights and
interests in land located in Chicago, Illinois (the
"Chicago Purchase Options") as more fully described
in the Pledges of Purchase Option dated as of June
15, 2001 made by The Eaglebrook Group, Inc., a
subsidiary of the Company, in favor of Bank of
America, as administrative agent under USPL's
existing revolver.
CASH DOMINION: All accounts of the Company and its subsidiaries will
be maintained with Lenders or banks which have signed
blocked account agreements with the Administrative
Agent. All collections of accounts receivable and
other payments received by the Company and its
subsidiaries will be applied to pay the loans on a
daily basis.
BORROWING BASE: Availability under the Facility will be governed by a
weekly borrowing base, with the structure and advance
rates to be determined based on a field examination
and an equipment appraisal (minus, so long as the
approximately $1,000,000 of deferred fees and
expenses has not been paid, a reserve for such fees
and expenses). USPL will, from time to time upon
request of the Administrative Agent, provide evidence
confirming (a) the location of any equipment included
in the borrowing base and (b) that such equipment is
free and clear of all liens other than the security
interest of the Administrative Agent and the
subordinated security interest of Halifax.
MATURITY: The second anniversary of the closing date.
MANDATORY
PREPAYMENTS: The commitments under the Facility will be reduced by
an amount equal to:
o 100% of the net cash proceeds of all asset sales
(subject to baskets to be determined); and
o 50% of the net cash proceeds from the issuance of
any debt (subject to de minimis exceptions) or
equity.
PRICING: Loans will bear interest at Bank of America's prime
rate plus 2.0% per annum. Non-use fees will accrue at
0.50% per annum and letter of credit fees will accrue
at 3.0% per annum (plus a fronting fee for the
issuing bank of 0.25% per annum). Interest and fees
will be payable monthly. If the Facility is still
effective 6 months from the funding date, the
interest rate will increase to Bank of America's
prime rate plus 3.0% per annum and the letter of
credit fee will increase to 4.0%.
INITIAL
CONTINUATION FEE: $150,000 payable 181 days from the funding date if
the Facility is still effective (to be divided among
the Lenders according to their pro rata shares).
SUPPLEMENTAL
CONTINUATION FEE: $125,000 payable on the first anniversary of the
closing date if the Facility is still effective (to
be divided among the Lenders according to their pro
rata shares).
ARRANGEMENT FEE: $50,000 payable to the Administrative Agent on the
closing date.
AGENT'S FEE: $60,000 payable to the Administrative Agent on the
closing date and each anniversary thereof.
MONITORING FEE: Reimbursement of consultants designated by the
Lenders for monitoring fees of $15,000 per month
(except that if an event of default exists, the
Company shall pay the actual fees and expenses of
such consultant).
FINANCIAL
COVENANTS: To be determined, but will include a maximum monthly
draw amount to be determined via revised projections.
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OTHER COVENANTS: Similar to the covenants in USPL's existing revolver,
including, without limitation:
o Limitations on investments, material divestitures
and contract terminations.
o Limitations on capital expenditures.
o Limitations on mergers and consolidations.
o Limitations on indebtedness and operating lease
obligations.
o Limitations on liens.
o Limitations on restricted payments.
o Limitations on officer compensation.
o No cash payments on subordinated debt.
o Monthly inventory report and agings of receivables
and payables.
o Quarterly field examinations.
CONDITIONS
PRECEDENT: In addition to customary conditions precedent, the
closing of the facility will be subject to the
following:
o Sale of Clean Earth and agreement on use of
proceeds from such sale.
o The lenders under USPL's credit facility with GE
Capital and various other parties (the "GE Capital
Facility") shall have agreed that, in exchange for
a payment of not more than $500,000 from the
proceeds of the sale of Clean Earth and the
consent of the Lenders to the grant of a security
interest in the Chicago Purchase Options to secure
the GE Capital Facility, no amortization of
principal will be required under the GE Facility
for at least two years.
o Halifax shall have agreed that, in exchange for a
payment of $2,500,000 from the proceeds of the
sale of Clean Earth, all of its subordinated debt
will bear interest at 10% payable in kind for two
years and in cash thereafter. Halifax will forgive
all accrued interest and fees (including Series D
preferred dividends) at time of closing. The
second position of Halifax on all collateral for
the Facility will be maintained substantially as
in its current form and as provided in the
Intercreditor and Subordination Agreement with
Bank of America.
o All existing indebtedness on the "Xxxxx Note"
shall have been converted to equity.
DEFAULTS: Similar to USPL's existing revolver.
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EXPENSES: The Company will pay all reasonable costs and
expenses associated with the structuring, due
diligence, arrangement, syndication, document
preparation, and enforcement of the Facility,
including, without limitation, the legal fees of the
Administrative Agent's counsel.
WAIVER OF INTEREST
AND FEES: At closing, the Lenders will waive payment of
$1,000,000 of deferred interest and fees payable
under USPL's existing revolver. The balance of such
deferred interest and fees (i) will be forgiven at
the closing of the sale of Clean Earth if the
Facility is not utilized and (ii) otherwise, will be
evidenced by notes issued to the Lenders which will
be secured by the same collateral as the Facility,
shall not bear interest prior to maturity and shall
mature on the 181st day after the closing of the
Facility. If the Facility is paid in full (subject
only to any agreed-upon deferral described in the
following sentence) and the commitments are
terminated on or before the 181st day after closing,
such notes shall be deemed paid in full. In addition,
if USPL obtains a new senior credit facility to
replace the Facility on or before the 181st day after
closing, the Lenders will consider deferring payment
of a portion of the principal of the Facility.
RELEASE OF
CLEAN EARTH: Upon the sale of Clean Earth and the closing of the
Facility (or the refinancing of the existing
revolver), the Lenders will release all guaranties
and security granted by Clean Earth and its
subsidiaries in connection with the existing USPL
revolver.
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