Exhibit 10.23
April 9, 2004
Kinetics Group, Inc.
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Attention: General Counsel
Re: Special Power of Attorney
Gentlemen:
Reference is made to that certain ▇▇▇▇▇▇▇ and Restated Credit Agreement dated as
of December 10, 2002 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "CREDIT AGREEMENT") among Celerity
Group, Inc. (f/k/a Kinetics Holdings Corporation) ("HOLDINGS"), Kinetics Group,
Inc. (the "KGI"), the subsidiary guarantors party thereto, the lenders party
thereto from time to time, The Bank of Nova Scotia as Administrative Agent
("SENIOR LENDER AGENT") and the other lenders party thereto (collectively, the
"SENIOR LENDERS").
Reference is also made to that certain Amended and Restated Purchase Agreement
dated as of April 9, 2004 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "TCP PURCHASE AGREEMENT") by and among
Holdings, KGI, Kinetic Systems, Inc. ("KSI"), the Subsidiary Guarantors party
thereto, the Purchasers party thereto (the "TCP PURCHASERS") and ▇▇▇▇▇▇▇▇▇▇
Capital Partners, LLC, as Agent for such Purchasers (the "TCP AGENT").
Reference is also made to that certain Amended and Restated Securities Purchase
Agreement dated as of April 9, 2004 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the "MEZZANINE PURCHASE
AGREEMENT"), by and among the Company, Holdings, KSI, the Subsidiary Guarantors
party thereto, the Purchasers party thereto (the "MEZZANINE PURCHASERS") and
Ares Corporate Opportunities Fund, L.P., as Agent for such Purchasers (the
"MEZZANINE AGENT").
The Credit Agreement, TCP Purchase Agreement, Mezzanine Purchase Agreement, the
Mezzanine Transaction Documents (as defined in the Mezzanine Purchase
Agreement), the Transaction Documents (as defined in the TCP Purchase
Agreement), and the Credit Documents (as defined in the Credit Agreement) shall
collectively be referred to as the "LOAN AGREEMENTS." Capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Loan
Agreements, as applicable. This letter agreement is being entered into for the
benefit of KGI, the Lenders and Holders under the Loan Agreements.
1. Efforts to Avoid Defaults. The LLC hereby agrees to use its
commercially reasonable efforts avoid the LLC causing a Default or
Event of Default under each of the Loan Agreements in respect of its
obligations and requirements thereunder.
2. Appointment of Special Attorney-in-Fact. For purposes of performing the
obligations of the LLC under each Loan Agreement, the LLC hereby
irrevocably constitutes and appoints KGI
and any officer or agent thereof (the "ATTORNEY-IN-FACT"), with full
power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of the LLC
and in the name of the LLC or in its own name, upon the occurrence of a
Default, and whether or not there then exists an Event of Default, for
the purpose of taking all appropriate action that would be taken by a
reasonably prudent person in such circumstances to cure such Default
before such time that there is an Event Default and to cure any Event
of Default, including, but not limited to, performing the obligations
of the LLC under the terms of the Loan Agreements and perfecting and
preserving the priority of security interests granted pursuant to the
Pledge Agreement contemplated by the Loan Agreements. KGI hereby
accepts such appointment and agrees, for the benefit of the Lenders and
Holders under the Loan Agreements, to exercise the authority granted to
it as Attorney-in-Fact.
3. Celerity Merger. The Parties acknowledge that KGI is expected to be
merged with and into Holdings, and it is agreed that in connection with
such merger Holdings shall be substituted for KGI as a party to this
letter.
4. Specific Performance. The Parties hereby expressly agree that the
Lenders and Holders under the Loan Agreements may enforce any and all
rights derived herein by suit, either in equity or law, for specific
performance of any agreement contained in this letter agreement or for
judgment at law and any other relief whatsoever appropriate to such
action or procedure.
5. Governing Law. This letter agreement shall be construed in accordance
with and governed by the laws of the State of New York, without regard
to any conflicts of law provisions that would require the application
of the law of any other jurisdiction.
6. Counterparts. This letter agreement may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
7. Termination. Upon the termination or satisfaction in full of the LLC's
obligations under the Loan Agreements, this Agreement shall terminate.
8. Headings Descriptive. The headings of the several sections and
subsections of this letter agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any
provision of this Agreement.
9. Amendment or Waiver; Etc. Neither this letter agreement nor any terms
hereof may be changed, waived, discharged or terminated unless such
change, waiver, discharge or termination is in writing signed by each
of the investor Parties to the Restructuring Agreement, the Required
Lenders under the Credit Agreement, the Required Holders under the TCP
Purchase Agreement and the Required Holders under the Mezzanine
Purchase Agreement.
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10. Third Party Beneficiaries. Each of the Lenders and Holders under the
Loan Agreements is a third party beneficiary hereof, entitled to
enforce the provisions of this agreement as if it were a party hereto.
KH LLC, a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
AGREED AND ACKNOWLEDGED:
KINETICS GROUP, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:
[Signature Page-Special Power of Attorney Letter]