Exhibit (10)(b)
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CREDIT AGREEMENT
dated as of December 7, 2001
between
WORLD FUEL SERVICES CORPORATION
and
LASALLE BANK NATIONAL ASSOCIATION
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS ...................................................................... 1
1.1 Definitions ...................................................................... 1
1.2 Other Interpretive Provisions .................................................... 10
SECTION 2 COMMITMENT OF THE BANK; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES .... 11
2.1 Commitment ....................................................................... 11
2.1.1 Revolving Loan Commitment ................................................ 11
2.1.2 Letter of Credit Commitment .............................................. 11
2.2 Loan Procedures .................................................................. 11
2.2.1 Various Types of Loans ................................................... 12
2.2.2 Borrowing Procedures ..................................................... 12
2.2.3 Conversion and Continuation Procedures ................................... 12
2.3 Letter of Credit Procedures ...................................................... 13
2.3.1 Letter of Credit Applications ............................................ 13
2.3.2 Reimbursement Obligations ................................................ 13
2.3.3 Limitation on Obligations of Bank ........................................ 14
2.4 Certain Conditions ............................................................... 14
SECTION 3 NOTES EVIDENCING LOANS ........................................................... 14
3.1 Notes ............................................................................ 14
3.2 Recordkeeping .................................................................... 14
SECTION 4 INTEREST ......................................................................... 15
4.1 Interest Rates ................................................................... 15
4.2 Interest Payment Dates ........................................................... 15
4.3 Setting and Notice of Eurodollar Rates ........................................... 15
4.4 Computation of Interest .......................................................... 15
SECTION 5 FEES ............................................................................. 16
5.1 Non-Use Fee ...................................................................... 16
5.2 Letter of Credit Fees ............................................................ 16
5.3 Facility Fee ..................................................................... 16
SECTION 6 PREPAYMENTS ...................................................................... 17
6.1 Voluntary Prepayments ............................................................ 17
6.2 All Prepayments .................................................................. 17
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES .................................. 17
7.1 Making of Payments ............................................................... 17
7.2 Application of Certain Payments .................................................. 17
7.3 Due Date Extension ............................................................... 17
7.4 Setoff ........................................................................... 17
7.5 Taxes ............................................................................ 17
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS ......................... 18
8.1 Increased Costs .................................................................. 18
8.2 Basis for Determining Interest Rate Inadequate or Unfair ......................... 19
8.3 Changes in Law Rendering Eurodollar Loans Unlawful .......................... 20
8.4 Funding Losses .............................................................. 20
8.5 Right of Bank to Fund through Other Offices ................................. 20
8.6 Discretion of Bank as to Manner of Funding .................................. 21
8.7 Mitigation of Circumstances ................................................. 21
8.8 Conclusiveness of Statements; Survival of Provisions ........................ 21
SECTION 9 SECURITY ................................................................... 21
SECTION 10 WARRANTIES ................................................................ 22
10.1 Organization ................................................................ 22
10.2 Authorization; No Conflict .................................................. 22
10.3 Validity and Binding Nature ................................................. 23
10.4 Financial Condition ......................................................... 23
10.5 No Material Adverse Change .................................................. 23
10.6 Litigation and Contingent Liabilities ....................................... 23
10.7 Ownership of Properties; Liens .............................................. 23
10.8 Subsidiaries ................................................................ 23
10.9 Pension Plans ............................................................... 23
10.10 Investment Company Act ...................................................... 24
10.11 Public Utility Holding Company Act .......................................... 24
10.12 Regulation U ................................................................ 24
10.13 Taxes ....................................................................... 24
10.14 Solvency, etc. .............................................................. 24
10.15 Environmental Matters ....................................................... 24
10.16 Insurance ................................................................... 26
10.17 Real Property ............................................................... 26
10.18 Information ................................................................. 26
10.19 Intellectual Property ....................................................... 26
10.20 Burdensome Obligations ...................................................... 27
10.21 Labor Matters ............................................................... 27
10.22 No Default .................................................................. 27
SECTION 11 COVENANTS ................................................................. 27
11.1 Reports, Certificates and Other Information ................................. 27
11.1.1 10-K ............................................................... 27
11.1.2 10-Q ............................................................... 27
11.1.3 Compliance Certificates ............................................ 27
11.1.4 Reports to the SEC and to Shareholders ............................. 28
11.1.5 Notice of Default, Litigation and ERISA Matters .................... 28
11.1.6 Management Reports ................................................. 28
11.1.7 Intentionally Omitted .............................................. 29
11.1.8 Other Information .................................................. 29
11.2 Books, Records and Inspections .............................................. 29
11.3 Maintenance of Property; Insurance .......................................... 29
11.4 Compliance with Laws; Payment of Taxes and Liabilities ...................... 30
11.5 Maintenance of Existence, etc. .............................................. 30
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11.6 Financial Covenants ............................................................................ 30
11.6.1 Fixed Charge Coverage Ratio .......................................................... 31
11.6.2 Leverage Ratio ....................................................................... 31
11.6.3 Dividends ............................................................................ 31
11.6.4 Capital Expenditures ................................................................. 31
11.6.5 Tangible Net Worth ................................................................... 31
11.7 Limitations on Debt ............................................................................ 31
11.8 Liens .......................................................................................... 32
11.9 Intentionally Omitted .......................................................................... 33
11.10 Restricted Payments ........................................................................... 33
11.11 Mergers, Consolidations, Sales ................................................................ 33
11.12 Modification of Organizational Documents ...................................................... 33
11.13 Use of Proceeds ............................................................................... 33
11.14 Further Assurances ............................................................................ 33
11.15 Transactions with Affiliates .................................................................. 34
11.16 Employee Benefit Plans ........................................................................ 34
11.17 Environmental Matters ......................................................................... 34
11.18 Unconditional Purchase Obligations ............................................................ 34
11.19 Inconsistent Agreements ....................................................................... 34
11.20 Business Activities ........................................................................... 35
11.21 Investments ................................................................................... 35
11.22 Fiscal Year ................................................................................... 36
11.23 Cancellation of Debt .......................................................................... 36
11.24 Intentionally Omitted ......................................................................... 36
11.25 Accounts ...................................................................................... 36
11.26 New Subsidiaries .............................................................................. 36
11.27 Sale and Leaseback Transactions ............................................................... 37
11.28 Repurchase Stock .............................................................................. 37
SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC. .................................................... 37
12.1 Initial Credit Extension ....................................................................... 37
12.1.1 Note ................................................................................. 37
12.1.2 Resolutions .......................................................................... 37
12.1.3 Consents, etc. ....................................................................... 37
12.1.4 Incumbency and Signature Certificates ................................................ 38
12.1.5 Pledge Agreement ..................................................................... 38
12.1.6 Opinions of Counsel .................................................................. 38
12.1.7 Insurance ............................................................................ 38
12.1.8 Payment of Fees ...................................................................... 38
12.1.9 Solvency Certificate, Certificate of No Material Adverse Change ...................... 38
12.1.10 Search Results; Lien Terminations ................................................... 38
12.1.11 Filings, Registrations and Recordings ............................................... 39
12.1.12 Closing Certificate ................................................................. 39
12.1.13 Governmental Approvals .............................................................. 39
12.1.14 Financial Statements ................................................................ 39
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12.1.15 Guaranty ......................................................... 39
12.1.16 Organizational Documents ......................................... 39
12.1.17 Master Letter of Credit Agreement ................................ 39
12.1.18 Other ............................................................ 39
12.2 Conditions ................................................................ 39
12.2.1 Compliance with Warranties, No Default, etc. ..................... 40
12.2.2 Confirmatory Certificate ......................................... 40
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT ........................................ 40
13.1 Events of Default ......................................................... 40
13.1.1 Non-Payment of the Loans, etc. ................................... 40
13.1.2 Non-Payment of Other Debt ........................................ 40
13.1.3 Other Material Obligations ....................................... 41
13.1.4 Bankruptcy, Insolvency, etc. ..................................... 41
13.1.5 Non-Compliance with Loan Documents ............................... 41
13.1.6 Warranties ....................................................... 41
13.1.7 Pension Plans .................................................... 41
13.1.8 Judgments ........................................................ 42
13.1.9 Invalidity of Collateral Documents, etc. ......................... 42
13.2 Effect of Event of Default ................................................. 42
SECTION 14 GENERAL ................................................................... 42
14.1 Waiver; Amendments ........................................................ 42
14.2 Notices ................................................................... 42
14.3 Computations .............................................................. 43
14.4 Regulation U .............................................................. 43
14.5 Costs, Expenses and Taxes ................................................. 43
14.6 Subsidiary References ..................................................... 44
14.7 Captions .................................................................. 44
14.8 Assignments; Participations ............................................... 44
14.8.1 Assignments ....................................................... 44
14.8.2 Participations .................................................... 44
14.9 Governing Law ............................................................. 45
14.10 Counterparts .............................................................. 45
14.11 Successors and Assigns .................................................... 45
14.12 Indemnification by the Company ............................................ 45
14.13 Nonliability of Bank ...................................................... 46
14.14 Forum Selection and Consent to Jurisdiction ............................... 47
14.15 Waiver of Jury Trial ...................................................... 47
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SCHEDULES
SCHEDULE 1 Pricing Schedule
SCHEDULE 10.6 Litigation and Contingent Liabilities
SCHEDULE 10.8 Subsidiaries
SCHEDULE 10.15 Environmental Matters
SCHEDULE 10.16 Insurance
SCHEDULE 10.17 Real Property
SCHEDULE 10.19 Intellectual Property
SCHEDULE 10.21 Labor Matters
SCHEDULE 11.7 Permitted Existing Debt
SCHEDULE 11.8 Permitted Existing Liens
SCHEDULE 11.21 Investments
SCHEDULE 12.1 Debt to be Repaid
SCHEDULE 14.2 Addresses for Notices
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EXHIBITS
EXHIBIT A Form of Revolving Loan Note (Section 3.1)
EXHIBIT B Form of Compliance Certificate (Section 10.1.3)
EXHIBIT C Form of Pledge Agreement (Section 1.1)
EXHIBIT D Form of Guaranty (Section 12.1.17)
EXHIBIT E Form of Opinion of Xxxxxx & Xxxxx, LLP (Section 11.1.11)
EXHIBIT F Form of Master Letter of Credit Agreement (Section 12.1.17)
EXHIBIT F-1 Letter of Credit Application (Standby)
EXHIBIT F-2 Letter of Credit Application (Commercial)
EXHIBIT G Form of Certificate of No Material Adverse Change (Section 12.1.9)
EXHIBIT H Form of Solvency Certificate - Guarantors (Section 12.1.9)
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CREDIT AGREEMENT
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THIS CREDIT AGREEMENT dated as of December 7, 2001 (this "Agreement") is
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entered into between WORLD FUEL SERVICES CORPORATION (the "Company") and LASALLE
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BANK NATIONAL ASSOCIATION (the "Bank").
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WHEREAS, the Bank has agreed to make available to the Company a revolving
credit facility and other financial accommodations upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
SECTION 1 DEFINITIONS.
1.1 Definitions. When used herein the following terms shall have the
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following meanings:
Affected Loan - see Section 8.3.
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Affiliate of any Person means (i) any other Person which, directly or
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indirectly, controls or is controlled by or is under common control with such
Person and (ii) any officer or director of such Person. A Person shall be deemed
to be "controlled by" any other Person if such Person possesses, directly or
indirectly, power to vote 20% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or managers or
power to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
Agreement - see the Preamble.
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Asset Sale means the sale, lease, assignment or other transfer for value
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(each a "Disposition") by the Company or any Subsidiary to any Person (other
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than the Company or any Subsidiary) of any asset or right of the Company or such
Subsidiary other than (a) the Disposition of any asset which is to be replaced,
and is in fact replaced, within 180 days with another asset performing the same
or a similar function, and (b) the sale or lease of inventory in the ordinary
course of business.
Attorney Costs means, with respect to any Person, all reasonable fees and
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charges of any counsel to such Person, the reasonable allocable cost of internal
legal services of such Person, all reasonable disbursements of such internal
counsel and all court costs and similar legal expenses.
Bank - see the Preamble.
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Business Day means any day on which the Bank is open for commercial banking
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business in Chicago, Illinois and, in the case of a Business Day which relates
to a Eurodollar Loan, on which dealings are carried on in the London interbank
eurodollar market.
Capital Expenditures means any expenditure which, in accordance with GAAP,
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would be required to be capitalized and shown on the consolidated balance sheet
of the Company, but excluding an expenditure made in connection with the
replacement, substitution or restoration of assets to the extent financed (i)
from insurance proceeds (or other similar recoveries) paid on account of the
loss of or damage to the assets being replaced or restored or (ii) with awards
of compensation arising from the taking by eminent domain or condemnation of the
assets being replaced.
Capital Lease means, with respect to any Person, any lease of (or other
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agreement conveying the right to use) any real or personal property by such
Person that, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of such Person.
Cash Collateralize means to deliver cash collateral to the Bank, to be held
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as cash collateral for outstanding Letters of Credit, pursuant to documentation
satisfactory to the Bank.
Cash Equivalent Investment means, at any time, (a) any evidence of Debt,
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maturing not more than one year after such time, issued or guaranteed by the
United States Government or any agency thereof, (b) commercial paper, maturing
not more than one year from the date of issue, or corporate demand notes, in
each case (unless issued by the Bank or its holding company) rated at least A-l
by Standard & Poor's Ratings Group or P-l by Xxxxx'x Investors Service, Inc.,
(c) any certificate of deposit (or time deposits represented by such
certificates of deposit) or banker's acceptance, maturing not more than one year
after such time, or overnight Federal Funds transactions that are issued or sold
by the Bank or its holding company or by a commercial banking institution that
is a member of the Federal Reserve System and has a combined capital and surplus
and undivided profits of not less than $500,000,000 and (d) any repurchase
agreement entered into with the Bank (or other commercial banking institution of
the stature referred to in clause (c)) which (i) is secured by a fully perfected
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security interest in any obligation of the type described in any of clauses (a)
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through (c) and (ii) has a market value at the time such repurchase agreement is
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entered into of not less than 100% of the repurchase obligation of the Bank (or
other commercial banking institution) thereunder.
CERCLA - see Section 10.15.
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Closing Date - see Section 12.1.
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Code means the Internal Revenue Code of 1986.
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Collateral means collectively, the property of the Company, any Subsidiary
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or any other Person in which the Bank is granted a Lien as security for all or
any portion of the Obligations under any Pledge Agreement.
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Collateral Documents means the Pledge Agreement, each UCC financing
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statement, and any other agreement or instrument pursuant to which the Company,
any Subsidiary or any other Person grants collateral to the Bank.
Commitment means the Bank's commitment to make Loans and issue Letters of
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Credit under this Agreement.
Company - see the Preamble.
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Computation Period means each period of four consecutive Fiscal Quarters
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ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, with respect to the Company and its
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Subsidiaries for any period, the net income (or loss) of the Company and its
Subsidiaries for such period determined in accordance with GAAP applied on a
basis consistent with the financial statements delivered pursuant to Section
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11.1 and Section 11.2.
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Controlled Group means all members of a controlled group of corporations
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and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Company, are treated
as a single employer under Section 414 of the Code or Section 4001 of ERISA.
Debt of any Person means, without duplication, (a) all indebtedness of such
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Person for borrowed money, whether or not evidenced by bonds, debentures, notes
or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been or should be recorded as liabilities on a balance
sheet of such Person in accordance with GAAP, (c) all obligations of such Person
to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business), (d) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person, (e) all obligations,
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn) and banker's acceptances issued for the account of
such Person, (f) all Hedging Obligations of such Person, (g) all Suretyship
Liabilities of such Person and (h) all Debt of any partnership of which such
Person is a general partner; provided, however, that Debt shall not include (a)
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accrued expenses, (b) customer deposits, (c) income taxes payable, (d) deferred
compensation or (e) deferred tax.
Debt to be Repaid means Debt listed on Schedule 12.1.
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Disposal - see the definition of "Release".
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Dollar and the sign "$" mean lawful money of the United States of America.
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Domestic Subsidiary means any Subsidiary of the Company organized under the
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laws of the United States of America, any state or territory thereof or the
District of Columbia.
Environmental Claim means a claim, however asserted, by any governmental,
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regulatory or judicial authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
Environmental Laws means all present or future federal, state or local
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laws, statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any governmental authority,
in each case relating to Environmental Matters.
Environmental Matter means any matter arising out of or relating to health
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and safety, or pollution or protection of the environment or workplace,
including any of the foregoing relating to the presence, use, production,
generation, handling, transport, treatment, storage, disposal, distribution,
discharge, release, control or cleanup of any Hazardous Substance.
ERISA means the Employee Retirement Income Security Act of 1974.
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Eurocurrency Reserve Percentage means, with respect to any Eurodollar Loan
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for any Interest Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the percentage in effect on each
day of such Interest Period, as prescribed by the FRB, for determining the
aggregate maximum reserve requirements applicable to "Eurocurrency Liabilities"
pursuant to Regulation D or any other then applicable regulation of the FRB
which prescribes reserve requirements applicable to "Eurocurrency Liabilities"
as presently defined in Regulation D.
Eurodollar Loan means any Loan which bears interest at a rate determined by
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reference to the Eurodollar Rate (Reserve Adjusted).
Eurodollar Margin - see the Pricing Schedule.
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Eurodollar Office means the office or offices of the Bank which shall be
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making or maintaining the Eurodollar Loans of the Bank hereunder. A Eurodollar
Office of the Bank may be, at the option of the Bank, either a domestic or
foreign office.
Eurodollar Rate means, with respect to any Eurodollar Loan for any Interest
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Period, a rate per annum equal to the offered rate for deposits in Dollars for a
period equal or comparable to such Interest Period which appears on Telerate
page 3750 as of 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period. "Telerate Page 3750" means the display designated
as "Page 3750" on the Telerate Service (or such other page as may replace page
3750 on that service or such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for Dollar deposits).
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Eurodollar Rate (Reserve Adjusted) means, with respect to any Eurodollar
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Loan for any Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16th of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
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(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage.
Event of Default means any of the events described in Section 13.1.
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Fiscal Quarter means a fiscal quarter of a Fiscal Year.
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Fiscal Year means the fiscal year of the Company and its Subsidiaries,
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which period shall be the 12-month period ending on March 31 of each year.
References to a Fiscal Year with a number corresponding to any calendar year
(e.g., "Fiscal Year 1998") refer to the Fiscal Year ending on March 31 of such
calendar year.
Fixed Charge Coverage Ratio means, with respect to the Company and its
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Subsidiaries for any Computation Period, on a consolidated basis, the ratio of
(i) earnings before Interest Expense, plus taxes, plus depreciation and
amortization, less Capital Expenditures, to (ii) interest expense, plus current
maturities of long-term debt and Capital Leases, plus dividends.
Foreign Subsidiary means a Subsidiary other than a Domestic Subsidiary.
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FRB means the Board of Governors of the Federal Reserve System or any
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successor thereto.
GAAP means generally accepted accounting principles set forth from time to
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time in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
Guarantors mean all Material Domestic Subsidiaries.
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Guaranty means the Guaranty, substantially in the form of Exhibit D,
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executed by the Guarantors in favor of the Bank, together with any other
guaranty executed and delivered to the Bank in connection with the Obligations.
Hazardous Substances - see Section 10.15.
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Hedging Agreement means any interest rate, currency or commodity swap
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agreement, cap agreement or collar agreement, and any other agreement or
arrangement designed to protect a Person against fluctuations in interest rates,
currency exchange rates or commodity prices.
Hedging Obligation means, with respect to any Person, any liability of such
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Person under any Hedging Agreement.
Interest Expense means for any period the consolidated interest expense of
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the Company and its Subsidiaries for such period (including all imputed interest
on Capital Leases).
Interest Period means, as to any Eurodollar Loan, the period commencing on
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the date such Loan is borrowed or continued as, or converted into, a Eurodollar
Loan and ending on the date one, two, three or six months thereafter as selected
by the Company pursuant to Section 2.2.2 or 2.2.3, as the case may be; provided
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that:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be
extended to the following Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on
the preceding Business Day;
(ii) any Interest Period that begins on a day for which
there is no numerically corresponding day in the calendar month
at the end of such Interest Period shall end on the last Business
Day of the calendar month at the end of such Interest Period; and
(iii) the Company may not select any Interest Period for a
Revolving Loan which would extend beyond the scheduled
Termination Date.
Investment means, relative to any Person, any investment in another Person,
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whether by acquisition of any debt or equity security, by making any loan or
advance or by becoming obligated with respect to a Suretyship Liability in
respect of obligations of such other Person (other than travel and similar
advances to employees in the ordinary course of business).
Letter of Credit - see Section 2.1.2
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Letter of Credit Application means with respect to the request for the
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issuance of a Letter of Credit, a letter of credit application in the form being
used by Bank at the time of such request for the type of letter of credit
requested (in accordance with and subject to the terms and conditions of the
Master Letter of Credit Agreement), substantially in the form of Exhibit F-1 or
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Exhibit F-2, as applicable.
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Letter of Credit Fee Rate - see the Pricing Schedule.
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Letter of Credit Outstandings means, at any time, the aggregate amount
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remaining undrawn under all Letters of Credit plus Reimbursement Obligations
then outstanding.
Lien means, with respect to any Person, any interest granted by such Person
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in any real or personal property, asset or other right owned or being purchased
or acquired by such Person which secures payment or performance of any
obligation and shall include any mortgage, lien, encumbrance, charge or other
security interest of any kind, whether arising by contract, as a matter of law,
by judicial process or otherwise.
Loan Documents means this Agreement, the Note, the Master Letter of Credit
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Agreement, the Guaranty, the Collateral Documents and all other documents
executed in connection therewith.
Loan Party means the Company, each Guarantor and each Subsidiary pledging
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Collateral to the Bank.
Loans mean Revolving Loans.
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Margin Stock means any "margin stock" as defined in Regulation U.
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Master Letter of Credit Agreement means the Master Letter of Credit
---------------------------------
Agreement, dated as of the date hereof, substantially in the form of Exhibit F.
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Material Adverse Effect means (a) a material adverse change in, or a
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material adverse effect upon, the financial condition, operations, assets,
business, properties or prospects of the Company and its Subsidiaries taken as a
whole, (b) a material impairment of the ability of the Company or any Loan Party
to perform any of its obligations under any Loan Document or (c) a material
adverse effect upon any substantial portion of the Collateral under the
Collateral Documents or upon the legality, validity, binding effect or
enforceability against the Company or any Loan Party of any Loan Document, or
upon the validity, enforceability, perfection or priority of the Bank's Lien in
any of the Collateral covered by any Collateral Document.
Material Domestic Subsidiary means a Domestic Subsidiary which is a
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"Significant Subsidiary" of the Company as defined in Regulation S-X of the SEC.
Material Foreign Subsidiary means a Foreign Subsidiary which is a
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"Significant Subsidiary" of the Company as defined in Regulation S-X of the SEC.
Material Subsidiary means a Subsidiary which is a "Significant Subsidiary"
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of the Company as defined in Regulation S-X of the SEC.
Multiemployer Pension Plan means a multiemployer plan, as defined in
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Section 4001(a)(3) of ERISA, to which the Company or any member of the
Controlled Group may have any liability.
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Non-Use Fee Rate - see the Pricing Schedule.
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Note - see Section 3.1.
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Obligations shall mean the obligations, liabilities and indebtedness of the
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Company with respect to (i) the principal and interest on Loans, (ii) all
obligations with respect to the Letters of Credit, including the Reimbursement
Obligations, (iii) all liabilities of the Company to Bank which arise under any
Hedging Agreement, and (iv) the payment and performance of all other
obligations, liabilities and Indebtedness of the Company to the Bank hereunder,
under any of the other Loan Documents or with respect to the Loans.
PBGC means the Pension Benefit Guaranty Corporation and any entity
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succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined in Section
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3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer
Pension Plan), and to which the Company or any member of the Controlled Group
may have any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
Person means any natural person, corporation, partnership, trust, limited
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liability company, association, governmental authority or unit, or any other
entity, whether acting in an individual, fiduciary or other capacity.
Pledge Agreement means each Securities Pledge Agreement between the Company
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and the Bank, or any Subsidiary and the Bank, pursuant to which the Company and
the Subsidiaries shall pledge to the Bank sixty-five percent (65%) of the
capital stock of the each existing or hereafter acquired or organized Material
Foreign Subsidiary.
Pricing Schedule - see Schedule 1.
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Prime Rate means, for any day, the rate of interest in effect for such day
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as publicly announced from time to time by Bank as its prime rate (whether or
not such rate is actually charged by Bank). Any change in the Prime Rate
announced by Bank shall take effect at the opening of business on the day
specified in the public announcement of such change.
Prime Rate Loan means any Loan which bears interest at or by reference to
---------------
the Prime Rate.
Prime Rate Margin - see the Pricing Schedule.
----------------- ----------------
RCRA - see Section 10.15.
---- -------------
-8-
Regulation D means Regulation D of the FRB.
------------
Regulation U means Regulation U of the FRB.
------------
Reimbursement Obligation shall mean at any time, the obligation of the
------------------------
Company with respect to any Letter of Credit to reimburse the Bank for amounts
theretofore paid by the Bank pursuant to a drawing under such Letter of Credit.
Release has the meaning specified in CERCLA and the term "Disposal" (or
------- --------
"Disposed") has the meaning specified in RCRA; provided that in the event either
-------- --------
CERCLA or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply as of the effective date of such
amendment; and provided, further, that to the extent that the laws of a state
-------- -------
wherein any affected property lies establish a meaning for "Release" or
-------
"Disposal" which is broader than is specified in either CERCLA or RCRA, such
--------
broader meaning shall apply.
Revolving Commitment Amount means $30,000,000.
---------------------------
Revolving Loan - see Section 2.1.1.
-------------- -------------
Revolving Outstandings means, at any time, the sum of the aggregate
----------------------
principal amount of all outstanding Revolving Loans.
SEC means the United States Securities and Exchange Commission or any other
---
governmental authority succeeding to any of the principal functions thereof.
Subsidiary means, with respect to any Person, a corporation, partnership,
----------
limited liability company or other entity of which such Person and/or its other
Subsidiaries own, directly or indirectly, such number of outstanding shares or
other ownership interests as have more than 50% of the ordinary voting power for
the election of directors or other managers of such corporation, partnership,
limited liability company or other entity. Unless the context otherwise
requires, each reference to Subsidiaries herein shall be a reference to
Subsidiaries of the Company.
Suretyship Liability means any agreement, undertaking or arrangement by
--------------------
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to or otherwise to invest in a
debtor, or otherwise to assure a creditor against loss) any indebtedness,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person. The amount of any
Person's obligation in respect of any Suretyship Liability shall (subject to any
limitation set forth therein) be deemed to be the principal amount of the debt,
obligation or other liability supported thereby.
-9-
Tangible Net Worth means, with respect to the Company and its Subsidiaries,
------------------
consolidated shareholders' equity (including retained earnings) less the book
value of all intangible assets, all as determined pursuant to GAAP applied on a
basis consistent with the financial statements delivered pursuant to Section
-------
11.1.1 and Section 11.1.2.
------ --------------
Termination Date means the earlier to occur of (a) the third anniversary of
----------------
the Closing Date, or (b) such other date on which the Commitment terminates
pursuant to this Agreement; provided, that, upon written request delivered to
--------
the Bank no later than sixty (60) days after delivery by the Company to the Bank
of the Company's 10-K for any fiscal year, and provided, further that no Event
-------- -------
of Default or Unmatured Event of Default then exists, the Bank, in its sole
discretion, may extend the Termination Date for one (1) additional year. The
Bank shall provide written notice of its decision to the Company within thirty
(30) days of receipt of the Company's request therefor.
Total Liabilities means, with respect to the Company and its Subsidiaries,
-----------------
the aggregate amount of liabilities required to be reflected on the balance
sheet of the Company and its Subsidiaries, on a consolidated basis after
eliminating all intercompany items, determined in accordance with GAAP on a
consistent basis less any such amounts constituting Obligations.
UCC means the Uniform Commercial Code as enacted in the State of Florida
---
and each other applicable jurisdiction.
Unmatured Event of Default means any event that, if it continues uncured,
--------------------------
will, with lapse of time or notice or both, constitute an Event of Default.
Wholly-Owned Subsidiary means, as to any Person, another Person all of the
-----------------------
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by such Person
and/or another Wholly-Owned Subsidiary of such Person.
1.2 Other Interpretive Provisions.
-----------------------------
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) Section, Schedule and Exhibit references are to this Agreement
------- -------- -------
unless otherwise specified.
(c) The term "including" is not limiting and means "including without
limitation."
(d) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means
"to and including."
-10-
(e) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement), documents and other contractual
instruments shall be deemed to include all subsequent amendments,
restatements, and other modifications thereto, but only to the extent such
amendments, restatements and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute or
regulation shall be construed as including all statutory and regulatory
provisions amending, replacing, supplementing or interpreting such statute
or regulation.
(f) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are
cumulative and each shall be performed in accordance with its terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among, and have been reviewed by, counsel to the Bank, the
Company and the other parties thereto and are the products of all parties.
Accordingly, they shall not be construed against the Bank merely because of
the Bank's involvement in their preparation.
SECTION 2 COMMITMENT OF THE BANK; BORROWING PROCEDURES.
2.1 Commitment. On and subject to the terms and conditions of this
----------
Agreement, the Bank agrees to make loans to the Company and issue letters of
credit for the account of the Company as follows:
2.1.1 Revolving Loan Commitment. The Bank will make loans on a revolving
-------------------------
basis ("Revolving Loans") from time to time until the Termination Date in such
---------------
aggregate amounts as the Company may request from the Bank; provided that the
--------
sum of (x) Revolving Outstandings and (y) the Letter of Credit Outstandings will
not at any time exceed the Revolving Commitment Amount.
2.1.2 Letter of Credit Commitment. The Bank will issue standby and
---------------------------
documentary letters of credit, in each case containing such terms and conditions
as are permitted by this Agreement and the applicable Letter of Credit
Application and are reasonably satisfactory to the Bank (each a "Letter of
---------
Credit"), at the request of and for the account of the Company and certain of
------
its Subsidiaries, from time to time, before the date which is 30 days prior to
the Termination Date; provided that (i) the Letter of Credit Outstandings shall
--------
not at any time exceed $15,000,000 and (ii) the sum of (x) Revolving
Outstandings and (y) Letter of Credit Outstandings will not at any time exceed
the Revolving Commitment Amount. At the option of the Company, the Bank will use
reasonable efforts to cause Letters of Credit hereunder to be issued by the
Bank's affiliate ABN AMRO Bank, N.V.
2.2 Loan Procedures.
---------------
-11-
2.2.1 Various Types of Loans. Each Revolving Loan shall be divided into
----------------------
tranches which are either a Prime Rate Loan or a Eurodollar Loan (each a "type"
----
of Loan), as the Company shall specify in the related notice of borrowing or
conversion pursuant to Section 2.2.2 or 2.2.3. Prime Rate Loans and Eurodollar
------------- -----
Loans may be outstanding at the same time, provided that not more that five (5)
--------
Eurodollar Loans having different Interest Periods shall be outstanding at any
one time. Notwithstanding anything to the contrary herein, no Eurodollar Loan
shall be for a period other than one, two, three or six months.
2.2.2 Borrowing Procedures. The Company shall give written notice or
--------------------
telephonic notice (followed immediately by written confirmation thereof) to the
Bank of each proposed borrowing not later than (a) in the case of a Prime Rate
borrowing, 11:00 A.M., Chicago time, on the proposed date of such borrowing, and
(b) in the case of a Eurodollar borrowing, 11:00 A.M., Chicago time, at least
three Business Days prior to the proposed date of such borrowing. Each such
notice shall be effective upon receipt by the Bank, shall be irrevocable, and
shall specify the date, amount and type of borrowing and, in the case of a
Eurodollar borrowing, the initial Interest Period therefor. Promptly upon
receipt of such notice, so long as the conditions precedent set forth in Section
-------
12 with respect to such borrowing have been satisfied, the Bank shall pay over
--
the funds to the Company on the requested borrowing date. Each borrowing shall
be on a Business Day. Each borrowing shall be in an aggregate principal amount
of at least $100,000 or a higher integral multiple of $100,000.
2.2.3 Conversion and Continuation Procedures.
--------------------------------------
(a) Subject to Section 2.2.1, the Company may, upon irrevocable
-------------
written notice to the Bank in accordance with clause (b) below:
----------
(i) elect, as of any Business Day, to convert any Loans (or any
part thereof in an aggregate amount not less than $100,000 or a
higher integral multiple of $100,000) into Loans of the other type;
or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Eurodollar Loans having Interest Periods
expiring on such day (or any part thereof in an aggregate amount
not less than $100,000 or a higher integral multiple of $100,000)
for a new Interest Period;
provided that after giving effect to any prepayment, conversion or continuation,
--------
the aggregate principal amount of all Eurodollar Loans having the same Interest
Period shall be at least $100,000 or an integral multiple of $100,000.
(b) The Company shall give written or telephonic (followed
immediately by written confirmation thereof) notice to the Bank of each
proposed conversion or continuation not later than (i) in the case of
conversion into Prime Rate Loans, 11:00 A.M., Chicago time, on the proposed
date of such conversion and (ii) in the case of conversion into or
-12-
continuation of Eurodollar Loans, 11:00 A.M., Chicago time, at least
three Business Days prior to the proposed date of such conversion or
continuation, specifying in each case:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Loans to be converted or continued;
(iii) the type of Loans resulting from the proposed conversion or
continuation; and
(iv) in the case of conversion into, or continuation of,
Eurodollar Loans, the duration of the requested Interest Period
therefor.
(c) If, upon the expiration of any Interest Period applicable to
Eurodollar Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Eurodollar Loans, the Company shall be
deemed to have elected to convert such Eurodollar Loans into Prime Rate
Loans effective on the last day of such Interest Period.
(d) Any conversion of a Eurodollar Loan on a day other than the last
day of an Interest Period therefor shall be subject to Section 8.4.
-----------
2.3 Letter of Credit Procedures
---------------------------
2.3.1 Letter of Credit Applications. The Company shall give notice to the
-----------------------------
Bank of the proposed issuance of each Letter of Credit on a Business Day which
is at least two (2) Business Days (or such lesser number of days as the Bank
shall agree in any particular instance in its sole discretion) prior to the
proposed date of issuance of such Letter of Credit. Each such notice shall be
accompanied by a Letter of Credit Application, duly executed by the Company and
in all respects satisfactory to the Bank, together with such other documentation
as the Bank may request in support thereof, it being understood that each Letter
of Credit Application shall specify, among other things, the date on which the
proposed Letter of Credit is to be issued, the expiration date of such Letter of
Credit (which shall not be later than the earlier to occur of (x) one year after
the date of issuance thereof and (y) thirty (30) days prior to the scheduled
Termination Date) and whether such Letter of Credit is to be transferable in
whole or in part. A Letter of Credit may provide for renewal thereof for
additional one-year periods, provided that in no event shall it extend beyond
the date referred to in clause (y) above. So long as the Bank has not received
----------
written notice that the conditions precedent set forth in Section 12 with
----------
respect to the issuance of such Letter of Credit have not been satisfied, the
Bank shall issue such Letter of Credit on the requested issuance date. In the
event of any inconsistency between the terms of any Letter of Credit Application
and the terms of this Agreement, the terms of this Agreement shall control.
2.3.2 Reimbursement Obligations. The Company hereby unconditionally and
-------------------------
irrevocably agrees to reimburse the Bank for each payment or disbursement made
by the Bank under any Letter
-13-
of Credit honoring any demand for payment made by the beneficiary thereunder, in
each case on the date that such payment or disbursement is made. Any amount not
reimbursed on the date of such payment or disbursement shall bear interest from
the date of such payment or disbursement to the date that the Bank is reimbursed
by the Company therefor, payable on demand, at a rate per annum equal to the
Prime Rate from time to time in effect plus the Prime Rate Margin from time to
----
time in effect plus, beginning on the third Business Day after receipt of notice
----
from the Bank of such payment or disbursement, two percent (2%). The Bank shall
notify the Company whenever any demand for payment is made under any Letter of
Credit by the beneficiary thereunder; provided that the failure of the Bank to
--------
so notify the Company shall not affect the rights of the Bank in any manner
whatsoever.
2.3.3 Limitation on Obligations of Bank. In determining whether to pay
---------------------------------
under any Letter of Credit, the Bank shall not have any obligation to the
Company other than to confirm that any documents required to be delivered under
such Letter of Credit have been delivered and comply on their face with the
requirements of such Letter of Credit. Any action taken or omitted to be taken
by the Bank under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence and willful misconduct, shall not
impose upon the Bank any liability to the Company and shall not reduce or impair
the Company's reimbursement obligations set forth in Section 2.3.2.
-------------
2.4 Certain Conditions. Notwithstanding any other provision of this
------------------
Agreement, the Bank shall not have any obligation to make any Loan, or to permit
the continuation of or any conversion into any Eurodollar Loan or issue a Letter
of Credit if an Event of Default or Unmatured Event of Default exists.
SECTION 3 NOTE EVIDENCING LOANS.
3.1 Note. The Loans of the Bank shall be evidenced by a promissory note
----
(the "Note") substantially in the form set forth in Exhibit A, payable to the
---- ---------
order of the Bank in a face principal amount equal to the Revolving Commitment
Amount. The Note shall be paid in full on the Termination Date.
3.2 Recordkeeping. The Bank shall record in its records, or at its
-------------
option on the schedule attached to the Note, the date and amount of each Loan
made by the Bank, each repayment or conversion thereof and, in the case of each
Eurodollar Loan, the dates on which each Interest Period for such Loan shall
begin and end. The aggregate unpaid principal amount so recorded shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on the
Note. The failure to so record any such amount or any error in so recording any
such amount shall not, however, limit or otherwise affect the obligations of the
Company hereunder or under the Note to repay the principal amount of the Loans
evidenced by the Note together with all interest accruing thereon.
-14-
SECTION 4 INTEREST.
4.1 Interest Rates. The Company promises to pay interest on the unpaid
--------------
principal amount of each Loan for the period commencing on the date of such Loan
until such Loan is paid in full as follows:
(a) at all times while such Loan is a Prime Rate Loan, at a rate per
annum equal to the sum of the Prime Rate from time to time in effect plus
the Prime Rate Margin from time to time in effect;
(b) at all times while such Loan is a Eurodollar Loan, at a rate per
annum equal to the sum of the Eurodollar Rate (Reserve Adjusted) applicable
to each Interest Period for such Loan plus the Eurodollar Margin from time
to time in effect; and
(c) any overdue interest, fees and other amounts payable hereunder
shall (to the extent permitted by applicable law) accrue interest at a rate
equal to the Prime Rate plus two percent (2%). Such interest shall be
payable on demand.
provided that at any time an Event of Default exists, the interest rate
--------
applicable to each Loan shall be the Prime Rate plus two percent (2%) payable on
demand;
4.2 Interest Payment Dates. Accrued interest on each Prime Rate Loan shall
----------------------
be payable in arrears on the last day of each calendar quarter, commencing on
the last day of the quarter in which the closing of such Prime Rate Loan takes
place and at maturity. Accrued interest on each Eurodollar Loan shall be payable
on the last day of each Interest Period relating to such Loan (and, in the case
of a Eurodollar Loan with a six-month Interest Period, on the three-month
anniversary of the first day of such Interest Period) and at maturity. After
maturity, accrued interest on all Loans shall be payable on demand.
4.3 Setting and Notice of Eurodollar Rates. The applicable Eurodollar Rate
--------------------------------------
for each Interest Period shall be determined by the Bank, and notice thereof
shall be given by the Bank promptly to the Company. Each determination of the
applicable Eurodollar Rate by the Bank shall be conclusive and binding upon the
parties hereto, in the absence of demonstrable error. The Bank shall, upon
written request of the Company, deliver to the Company a statement showing the
computations used by the Bank in determining any applicable Eurodollar Rate
hereunder.
4.4 Computation of Interest. Interest shall be computed for the actual
-----------------------
number of days elapsed on the basis of a year of 360 days. The applicable
interest rate for each Prime Rate Loan shall change simultaneously with each
change in the Prime Rate.
SECTION 5 FEES.
-15-
5.1 Non-Use Fee. The Company agrees to pay to the Bank a non-use fee, for
-----------
the period from the Closing Date to the Termination Date, at the Non-Use Fee
Rate (as set forth in the Pricing Schedule) in effect from time to time on the
daily unused amount of the Revolving Commitment Amount. For purposes of
calculating usage under this Section, the Revolving Commitment Amount on any day
shall be deemed used to the extent of the sum of (x) Revolving Outstandings and
(y) Letter of Credit Outstandings at the close of business of the Bank on the
next preceding Business Day. Such non-use fee shall be payable in arrears on the
last day of each calendar quarter, and on the Termination Date, for any period
then ending for which such non-use fee shall not have previously been paid. The
non-use fee shall be computed for the actual number of days elapsed on the basis
of a year of 360 days.
5.2 Letter of Credit Fees.
---------------------
(a) The Company agrees to pay to the Bank a letter of credit fee for
each Letter of Credit equal to the Letter of Credit Fee Rate (as set forth
in the Pricing Schedule) in effect from time to time on the undrawn amount
of such Letter of Credit (computed for the actual number of days elapsed on
the basis of a year of 360 days); provided, that the rate applicable to
--------
each Letter of Credit shall be increased by two percent (2%) at any time an
Event of Default exists until such time as Borrower has complied with its
obligations to provide to Bank cash collateral pursuant to Section 13.2.
------------
Such letter of credit fee shall be payable in arrears on the last day of
each calendar quarter and on the Termination Date, for the period from the
date of issuance of each Letter of Credit (or the last day on which such
letter of credit fee was paid with respect thereto) to the date such
payment is due or, if earlier, the date on which such Letter of Credit
expired or is terminated.
(b) In addition, with respect to each Letter of Credit, the Company
agrees to pay the Bank such fees and expenses the Bank customarily requires
in connection with the negotiation, processing, amending and/or
administration of letters of credit in similar situations.
5.3 Facility Fee. The Company agrees to pay to the Bank a facility fee of
------------
$75,000, of which one-half has been paid and the balance of which will be paid
on the Closing Date.
SECTION 6 PREPAYMENTS.
6.1 Voluntary Prepayments. The Company may from time to time prepay the
---------------------
Loans in whole or in part; provided that the Company shall give the Bank notice
--------
thereof not later than 11:00 A.M., Chicago time, on the day of such prepayment
(which shall be a Business Day), specifying the Loans to be prepaid and the date
and amount of prepayment.
6.2 All Prepayments. Each voluntary partial prepayment shall be in a
---------------
principal amount of $100,000 or a higher integral multiple of $100,000. Any
partial prepayment of Eurodollar Loans shall be subject to the proviso to
Section 2.2.3(a). Any prepayment of a Eurodollar Loan on a day
----------------
-16-
other than the last day of an Interest Period therefor shall include interest on
the principal amount being repaid and shall be subject to Section 8.4.
-----------
SECTION 7 MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES.
7.1 Making of Payments. All payments of principal of or interest on the
------------------
Notes, and of all fees, shall be made by the Company to the Bank in immediately
available funds at the office specified by the Bank not later than noon, Chicago
time, on the date due; and funds received after that hour shall be deemed to
have been received by the Bank on the following Business Day.
7.2 Application of Certain Payments. Each payment of principal shall be
-------------------------------
applied to such Loans as the Company shall direct by notice to be received by
the Bank on or before the date of such payment or, in the absence of such
notice, as the Bank shall determine in its discretion.
7.3 Due Date Extension. If any payment of principal or interest with
------------------
respect to any of the Loans, or of any fees, falls due on a day which is not a
Business Day, then such due date shall be extended to the immediately following
Business Day (unless, in the case of a Eurodollar Loan, such immediately
following Business Day is the first Business Day of a calendar month, in which
case such due date shall be the immediately preceding Business Day) and, in the
case of principal, additional interest shall accrue and be payable for the
period of any such extension.
7.4 Setoff. The Company agrees that the Bank has all rights of set-off and
------
bankers' lien provided by applicable law, and in addition thereto, the Company
agrees that at any time any Event of Default exists, the Bank may apply to the
payment of any Obligations, whether or not then due, any and all balances,
credits, deposits, accounts or moneys of the Company then or thereafter with the
Bank.
7.5 Taxes. All payments of principal of, and interest on, the Loans and
-----
all other amounts payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, excluding franchise taxes and taxes
imposed on or measured by Bank's net income or receipts (all non-excluded items
being called "Taxes"). If any withholding or deduction from any payment to be
-----
made by the Company hereunder is required in respect of any Taxes pursuant to
any applicable law, rule or regulation, then the Company will:
(a) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(b) promptly forward to the Bank an official receipt or other
documentation satisfactory to the Bank evidencing such payment to such
authority; and
-17-
(c) pay to the Bank such additional amount as is necessary to ensure
that the net amount actually received by Bank will equal the full amount
Bank would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Bank with respect to
any payment received by the Bank hereunder, the Bank may pay such Taxes and the
Company will promptly pay such additional amounts (including any penalty,
interest or expense) as is necessary in order that the net amount received by
such Person after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such Person would have received had
such Taxes not been asserted.
If the Company fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Bank the required receipts or other required
documentary evidence, the Company shall indemnify the Bank for any incremental
Taxes, interest or penalties that may become payable by Bank as a result of any
such failure. For purposes of this Section 7.5, a distribution hereunder by the
-----------
Bank to or for the account of the Bank shall be deemed a payment by the Company.
SECTION 8 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS.
8.1 Increased Costs. (a) If, after the date hereof, the adoption of, or any
---------------
change in, any applicable law, rule or regulation, or any change in the
interpretation or administration of any applicable law, rule or regulation by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank (or any
Eurodollar Office of the Bank) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) shall subject the Bank (or any Eurodollar Office of the Bank) to
any tax, duty or other charge with respect to its Eurodollar Loans, its
Note or its obligation to make Eurodollar Loans, or shall change the basis
of taxation of payments to the Bank of the principal of or interest on its
Eurodollar Loans or any other amounts due under this Agreement in respect
of its Eurodollar Loans or its obligation to make Eurodollar Loans (except
for changes in the rate of tax on the overall net income of the Bank or its
Eurodollar Office imposed by the jurisdiction in which the Bank's principal
executive office or Eurodollar Office is located);
(ii) shall impose, modify or deem applicable any reserve (including
any reserve imposed by the FRB), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by the Bank (or any Eurodollar Office of the Bank); or
(iii) shall impose on the Bank (or its Eurodollar Office) any other
condition affecting its Eurodollar Loans, its Note or its obligation to
make Eurodollar Loans;
-18-
and the result of any of the foregoing is to increase the cost to (or
to impose a cost on) the Bank (or any Eurodollar Office of the Bank) of
making or maintaining any Eurodollar Loan, or to reduce the amount of any
sum received or receivable by the Bank (or its Eurodollar Office) under
this Agreement or under its Note with respect thereto, then upon demand by
the Bank (which demand shall be accompanied by a statement setting forth
the basis for such demand and a calculation of the amount thereof in
reasonable detail, a copy of which shall be furnished to the Bank), the
Company shall pay directly to the Bank such additional amount as will
compensate the Bank for such increased cost or such reduction.
(b) If the Bank shall reasonably determine that any change in, or the
adoption or phase-in of, any applicable law, rule or regulation regarding
capital adequacy, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
the Bank or any Person controlling the Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the Bank's or such controlling
Person's capital as a consequence of the Bank's obligations hereunder to a
level below that which the Bank or such controlling Person could have
achieved but for such change, adoption, phase-in or compliance (taking into
consideration the Bank's or such controlling Person's policies with respect
to capital adequacy) by an amount deemed by the Bank or such controlling
Person to be material, then from time to time, upon demand by the Bank
(which demand shall be accompanied by a statement setting forth the basis
for such demand and a calculation of the amount thereof in reasonable
detail), the Company shall pay to the Bank such additional amount as will
compensate the Bank or such controlling Person for such reduction.
8.2 Basis for Determining Interest Rate Inadequate or Unfair. If with
--------------------------------------------------------
respect to any Interest Period:
(a) deposits in Dollars (in the applicable amounts) are not being
offered to the Bank in the interbank eurodollar market for such Interest
Period, or the Bank otherwise reasonably determines (which determination
shall be binding and conclusive on the Company) that by reason of
circumstances affecting the interbank eurodollar market adequate and
reasonable means do not exist for ascertaining the applicable Eurodollar
Rate; or
(b) the Bank advises the Company that the Eurodollar Rate (Reserve
Adjusted) as determined by the Bank will not adequately and fairly reflect
the cost to the Bank of maintaining or funding Eurodollar Loans for such
Interest Period (taking into account any amount to which the Bank may be
entitled under Section 8.1) or that the making or funding of Eurodollar
-----------
Loans has become impracticable as a result of an event occurring after the
date of this Agreement which in the opinion of the Bank materially affects
such Loans;
-19-
then and, so long as such circumstances shall continue, (i) the Bank shall not
----
be under any obligation to make or convert into Eurodollar Loans and (ii) on the
last day of the current Interest Period for each Eurodollar Loan, such Loan
shall, unless then repaid in full, automatically convert to a Prime Rate Loan.
8.3 Changes in Law Rendering Eurodollar Loans Unlawful. If any change
--------------------------------------------------
in, or the adoption of any new, law, rule or regulation, or any change in the
interpretation of any applicable law, rule or regulation by any governmental or
other regulatory body charged with the administration thereof, should make it
(or in the good faith judgment of the Bank cause a substantial question as to
whether it is) unlawful for the Bank to make, maintain or fund Eurodollar Loans,
then the Bank shall promptly notify each of the other parties hereto and, so
long as such circumstances shall continue, (a) the Bank shall have no obligation
to make or convert into Eurodollar Loans (but shall make Prime Rate Loans
concurrently with the making of or conversion into Eurodollar Loans by the Bank
which are not so affected, in each case in an amount equal to the amount of
Eurodollar Loans which would be made or converted into by the Bank at such time
in the absence of such circumstances) and (b) on the last day of the current
Interest Period for each Eurodollar Loan of the Bank (or, in any event, on such
earlier date as may be required by the relevant law, regulation or
interpretation), such Eurodollar Loan shall, unless then repaid in full,
automatically convert to a Prime Rate Loan. Each Prime Rate Loan made by the
Bank which, but for the circumstances described in the foregoing sentence, would
be a Eurodollar Loan (an "Affected Loan") shall remain outstanding for the same
-------------
period as the Eurodollar Loans of which such Affected Loan would be a part
absent such circumstances.
8.4 Funding Losses. The Company hereby agrees that upon demand by the
--------------
Bank (which demand shall be accompanied by a statement setting forth the basis
for the amount being claimed, the Company will indemnify the Bank against any
net loss or expense which the Bank may sustain or incur (including any net loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by the Bank to fund or maintain any Eurodollar Loan), as
reasonably determined by the Bank, as a result of (a) any payment, prepayment or
conversion of any Eurodollar Loan of the Bank on a date other than the last day
of an Interest Period for such Loan (including any conversion pursuant to
Section 8.3) or (b) any failure of the Company to borrow, prepay, convert or
-----------
continue any Loan on a date specified therefor in a notice of borrowing,
prepayment, conversion or continuation pursuant to this Agreement.
8.5 Right of Bank to Fund through Other Offices. The Bank may, if it so
-------------------------------------------
elects, fulfill its commitment as to any Eurodollar Loan by causing a foreign
branch or Affiliate of the Bank to make such Loan; provided that in such event
--------
for the purposes of this Agreement such Loan shall be deemed to have been made
by the Bank and the obligation of the Company to repay such Loan shall
nevertheless be to the Bank and shall be deemed held by it, to the extent of
such Loan, for the account of such branch or Affiliate.
-20-
8.6 Discretion of Bank as to Manner of Funding. Notwithstanding any
------------------------------------------
provision of this Agreement to the contrary, the Bank shall be entitled to fund
and maintain its funding of all or any part of its Loans in any manner it sees
fit, it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if the Bank had actually funded and
maintained each Eurodollar Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Eurodollar Rate for
such Interest Period.
8.7 Mitigation of Circumstances. (a) The Bank shall promptly notify the
---------------------------
Company of any event of which it has knowledge which will result in, and will
use reasonable commercial efforts available to it (and not, in the Bank's sole
judgment, otherwise disadvantageous to the Bank) to mitigate or avoid, (i) any
obligation by the Company to pay any amount pursuant to Section 7.5 or 8.1 or
----------- ---
(ii) the occurrence of any circumstances described in Section 8.2 or 8.3 (and,
----------- ---
if the Bank has given notice of any such event described in clause (i) or (ii)
---------- ----
above and thereafter such event ceases to exist, the Bank shall promptly so
notify the Company). Without limiting the foregoing, the Bank will designate a
different funding office if such designation will avoid (or reduce the cost to
the Company of) any event described in clause (i) or (ii) of the preceding
---------- ----
sentence and such designation will not, in the Bank's sole judgment, be
otherwise disadvantageous to the Bank.
8.8 Conclusiveness of Statements; Survival of Provisions.
----------------------------------------------------
Determinations and statements of the Bank pursuant to Section 8.1, 8.2, 8.3 or
----------- --- ---
8.4 shall be conclusive absent demonstrable error. The Bank may use reasonable
---
averaging and attribution methods in determining compensation under Sections 8.1
------------
and 8.4, and the provisions of such Sections shall survive repayment of the
---
Loans, cancellation of the Note, and termination of this Agreement.
SECTION 9 SECURITY
9.1 Security. As security for the full and timely payment and
--------
performance of all Obligations, the Company shall, and shall cause all other
Loan Parties to, on or before the Closing Date, do or cause to be done all
things necessary in the opinion of the Bank and its counsel to grant to the Bank
a duly perfected first priority security interest in all Collateral subject to
no prior Lien or other encumbrance or restriction on transfer (other than
restrictions on transfer imposed by applicable securities laws). Without
limiting the foregoing, the Company shall on the Closing Date deliver to the
Bank, in the form and substance reasonably acceptable to the Bank, (a) Pledge
Agreements pursuant to which the Company and certain of its Subsidiaries shall
pledge to the Bank sixty-five percent (65%) of the capital stock of each
existing, and each hereafter organized or acquired, Material Foreign Subsidiary,
(b) if such securities are in the form of certificated securities, such
certificated securities, together with undated stock powers or other appropriate
transfer documents endorsed in blank pertaining thereto, and (c) if such
securities do not constitute certificated securities, the Company shall take
such further action and deliver or cause to be delivered such further documents
as required to effect the transactions contemplated by this Section 9.1.
-----------
-21-
9.2 Further Assurances. At the request of the Bank, the Company will or
------------------
will cause all other Loan Parties, as the case may be to execute, by its duly
authorized officers, alone or with the Bank, any certificate, instrument,
financing statement, control agreement, statement or document, or to procure any
such certificate, instrument, statement or document, or to take such other
action (and pay all connected costs) which the Bank reasonably deems necessary
from time to time to create, continue or preserve the liens and security
interests (and the perfection and priority thereof) in the Collateral (as
defined in the Collateral Documents) including all Collateral acquired by the
Company or other Loan Party after the Closing Date. The Bank is hereby
irrevocably authorized to execute and file or cause to be filed, with or if
permitted by applicable law without the signatures of the Company or other Loan
Party, as applicable, Uniform Commercial Code financing statements reflecting
the Company or any other Loan Party as "debtor" and the Bank as "secured party",
and continuations thereof and amendments thereto, as the Bank reasonably deems
necessary or advisable to give effect to the transactions contemplated hereby
and by the other Loan Documents.
SECTION 10 WARRANTIES.
To induce the Bank to enter into this Agreement and to induce the Bank to
make Loans hereunder, the Company warrants to the Bank that:
10.1 Organization. The Company is a corporation validly existing and in
------------
good standing under the laws of the State of Florida; each Subsidiary is validly
existing and in good standing under the laws of the jurisdiction of its
organization; and each of the Company and each Subsidiary is duly qualified to
do business in each jurisdiction where, because of the nature of its activities
or properties, such qualification is required, except for such jurisdictions
where the failure to so qualify would not have a Material Adverse Effect.
10.2 Authorization; No Conflict. Each of the Company and each other Loan
--------------------------
Party is duly authorized to execute and deliver each Loan Document to which it
is a party, the Company is duly authorized to borrow monies hereunder and each
of the Company and each other Loan Party is duly authorized to perform its
obligations under each Loan Document to which it is a party. The execution,
delivery and performance by the Company of this Agreement and by each of the
Company and each other Loan Party of each Loan Document to which it is a party,
and the borrowings by the Company hereunder, do not and will not (a) require any
consent or approval of any governmental agency or authority (other than any
consent or approval which has been obtained and is in full force and effect),
(b) conflict with (i) any provision of law, (ii) the charter, by-laws or other
organizational documents of the Company or any other Loan Party or (iii) any
agreement, indenture, instrument or other document, or any judgment, order or
decree, which is binding upon the Company or any other Loan Party or any of
their respective properties or (c) require, or result in, the creation or
imposition of any Lien on any asset of the Company, any Subsidiary or any other
Loan Party (other than Liens in favor of the Bank created pursuant to the
Collateral Documents).
-22-
10.3 Validity and Binding Nature. Each of this Agreement and each other
---------------------------
Loan Document to which the Company or any other Loan Party is a party is the
legal, valid and binding obligation of such Loan Party, enforceable against such
Loan Party in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforceability of creditors' rights generally and to
general principles of equity.
10.4 Financial Condition. The audited consolidated financial statements of
-------------------
the Company and its Subsidiaries as at March 31, 2001, copies of each of which
have been delivered to Bank, were prepared in accordance with GAAP and present
fairly the consolidated financial condition of the Company and its Subsidiaries
as at such date and the results of their operations and cash flows for the
period then ended.
10.5 No Material Adverse Change. Since March 31, 2001 there has been no
--------------------------
material adverse change in the financial condition, operations, assets,
business, properties or prospects of the Company and its Subsidiaries taken as a
whole.
10.6 Litigation and Contingent Liabilities. No litigation (including
-------------------------------------
derivative actions), arbitration proceeding or governmental investigation or
proceeding is pending or, to the Company's knowledge, threatened against the
Company or any Subsidiary which might reasonably be expected to have a Material
Adverse Effect, except as set forth in Schedule 10.6. Other than any liability
-------------
incident to such litigation or proceedings, neither the Company nor any
Subsidiary has any material contingent liabilities not listed on Schedule 10.6
-------------
or permitted by Section 11.7.
------------
10.7 Ownership of Properties; Liens. Each of the Company and each
------------------------------
Subsidiary owns good and, in the case of real property, marketable title to all
of its properties and assets, real and personal, tangible and intangible, of any
nature whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens, charges and claims (including
infringement claims with respect to patents, trademarks, service marks,
copyrights and the like) except as permitted by Section 11.8.
------------
10.8 Subsidiaries. As of the Closing Date, the Company has no Subsidiaries
------------
other than those listed on Schedule 10.8.
-------------
10.9 Pension Plans.
-------------
(a) During the twelve-consecutive-month period prior to the date of
the execution and delivery of this Agreement or the making of any Loan, (i)
no steps have been taken to terminate any Pension Plan and (ii) no
contribution failure has occurred with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which could result in the incurrence by the Company of any
material liability, fine or penalty.
-23-
(b) All contributions (if any) have been made to any Multiemployer
Pension Plan that are required to be made by the Company or any other
member of the Controlled Group under the terms of the plan or of any
collective bargaining agreement or by applicable law; neither the Company
nor any member of the Controlled Group has withdrawn or partially withdrawn
from any Multiemployer Pension Plan, incurred any withdrawal liability with
respect to any such plan or received notice of any claim or demand for
withdrawal liability or partial withdrawal liability from any such plan,
and no condition has occurred which, if continued, might result in a
withdrawal or partial withdrawal from any such plan; and neither the
Company nor any member of the Controlled Group has received any notice that
any Multiemployer Pension Plan is in reorganization, that increased
contributions may be required to avoid a reduction in plan benefits or the
imposition of any excise tax, that any such plan is or has been funded at a
rate less than that required under Section 412 of the Code, that any such
plan is or may be terminated, or that any such plan is or may become
insolvent.
10.10 Investment Company Act. Neither the Company nor any Subsidiary is an
----------------------
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940.
10.11 Public Utility Holding Company Act. Neither the Company nor any
----------------------------------
Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935.
10.12 Regulation U. The Company is not engaged principally, or as one of
------------
its important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
10.13 Taxes. Each of the Company and each Subsidiary has filed all tax
-----
returns and reports required by law to have been filed by it and has paid all
taxes and governmental charges thereby shown to be owing, except any such taxes
or charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP have been
set aside on its books.
10.14 Solvency, etc. On the Closing Date, and immediately prior to and
-------------
after giving effect to the issuance of each Letter of Credit and each borrowing
hereunder and the use of the proceeds thereof, (a) each of the Company's and
each other Loan Party's assets will exceed its liabilities and (b) each of the
Company and each other Loan Party will be solvent, will be able to pay its debts
as they mature, will own property with fair saleable value greater than the
amount required to pay its debts (including Suretyship Liabilities) and will
have capital sufficient to carry on its business as then constituted.
10.15 Environmental Matters.
---------------------
-24-
(a) No Violations. Except as set forth on Schedule 10.15,
------------- --------------
neither the Company nor any Subsidiary, nor any operator of the
Company's or any Subsidiary's properties, is in violation, or alleged
violation, of any judgment, decree, order, law, permit, license, rule
or regulation pertaining to environmental matters, including those
arising under the Resource Conservation and Recovery Act ("RCRA"), the
----
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), the Superfund Amendments and Reauthorization Act of
------
1986 or any other Environmental Law which (i) in any single case,
requires expenditures in any three-year period of $250,000 or more by
the Company and its Subsidiaries in penalties and/or for investigative,
removal or remedial actions or (ii) individually or in the aggregate
otherwise might reasonably be expected to have a Material Adverse
Effect.
(b) Notices. Except as set forth on Schedule 10.15 and for
------- --------------
matters arising after the Closing Date, in each case none of which
could singly or in the aggregate be expected to have a Material Adverse
Effect, neither the Company nor any Subsidiary has received notice from
any third party, including any Federal, state or local governmental
authority: (a) that any one of them has been identified by the U.S.
Environmental Protection Agency as a potentially responsible party
under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part 000 Xxxxxxxx X; (b) that any hazardous waste, as
defined by 42 U.S.C. (S)6903(5), any hazardous substance as defined by
42 U.S.C. (S)9601(14), any pollutant or contaminant as defined by 42
U.S.C. (S)9601(33) or any toxic substance, oil or hazardous material or
other chemical or substance regulated by any Environmental Law (all of
the foregoing, "Hazardous Substances") which any one of them has
--------------------
generated, transported or disposed of has been found at any site at
which a Federal, state or local agency or other third party has
conducted a remedial investigation, removal or other response action
pursuant to any Environmental Law; (c) that the Company or any
Subsidiary must conduct a remedial investigation, removal, response
action or other activity pursuant to any Environmental Law; or (d) of
any Environmental Claim.
(c) Handling of Hazardous Substances. Except as set forth on
--------------------------------
Schedule 10.15, (i) no portion of the real property or other assets of
--------------
the Company or any Subsidiary has been used for the handling,
processing, storage or disposal of Hazardous Substances except in
accordance in all material respects with applicable Environmental Laws;
and no underground tank or other underground storage receptacle for
Hazardous Substances is located on such properties; (ii) in the course
of any activities conducted by the Company, any Subsidiary or the
operators of any real property of the Company or any Subsidiary, no
Hazardous Substances have been generated or are being used on such
properties except in accordance in all material respects with
applicable Environmental Laws; (iii) there have been no Releases or
threatened Releases of Hazardous Substances on, upon, into or from any
real property or other assets of the Company or any Subsidiary, which
Releases singly or in the aggregate might reasonably be expected to
have a material adverse effect on the value of such real property or
assets; (iv) there have been no Releases on, upon, from or into any
real property in the vicinity of the real property or other assets of
the Company or any Subsidiary which,
-25-
through soil or groundwater contamination, may have come to be located on,
and which might reasonably be expected to have a material adverse effect on
the value of, the real property or other assets of the Company or any
Subsidiary; and (v) any Hazardous Substances generated by the Company and
its Subsidiaries have been transported offsite only by properly licensed
carriers and delivered only to treatment or disposal facilities maintaining
valid permits as required under applicable Environmental Laws, which
transporters and facilities have been and are operating in compliance in
all material respects with such permits and applicable Environmental Laws.
10.16 Insurance. Set forth on Schedule 10.16 is a complete and accurate
--------- --------------
summary of the liability, life and business interruption insurance carried by
the Company and its Subsidiaries as of the Closing Date (including the names of
all insurers, policy numbers, expiration dates, amounts and types of coverage,
annual premiums, exclusions, deductibles, self-insured retention, and a
description in reasonable detail of any self-insurance program, retrospective
rating plan, fronting arrangement or other risk assumption arrangement involving
the Company or any Subsidiary).
10.17 Real Property. Set forth on Schedule 10.17 is a complete and accurate
------------- --------------
list, as of the Closing Date, of the addresses of all real property owned or
leased by the Company or any Subsidiary, together with, in the case of leased
property, the name and mailing address of the lessor of such property.
10.18 Information. All information heretofore or contemporaneously herewith
-----------
furnished in writing by the Company or any other Loan Party to the Bank for
purposes of or in connection with this Agreement, the other Loan Documents and
the transactions contemplated hereby is, and all written information hereafter
furnished by or on behalf of the Company or any Subsidiary to the Bank pursuant
hereto or thereto or in connection herewith or therewith will be, true and
accurate in every material respect on the date as of which such information is
dated or certified, and none of such information is or will be incomplete by
omitting to state any material fact necessary to make such information not
misleading in light of the circumstances under which made (it being recognized
by the Bank that any projections and forecasts provided by the Company are based
on good faith estimates and assumptions believed by the Company to be reasonable
as of the date of the applicable projections or assumptions and that actual
results during the period or periods covered by any such projections and
forecasts may differ from projected or forecasted results).
10.19 Intellectual Property. The Company and each Subsidiary owns and
---------------------
possesses or has a license or other right to use all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service xxxx rights and copyrights as are necessary for the conduct of the
business of the Company and its Subsidiaries, without any infringement upon
rights of others which could reasonably be expected to have a Material Adverse
Effect. Attached hereto as Schedule 10.19 is a true, correct and complete
--------------
listing of all such patents, patent rights, trademarks, trademark rights, trade
names, trade name rights, service marks, service xxxx rights and copyrights.
-26-
10.20 Burdensome Obligations. Neither the Company nor any Subsidiary is a
----------------------
party to any agreement or contract or subject to any corporate, partnership or
other entity restriction which might reasonably be expected to have a Material
Adverse Effect.
10.21 Labor Matters. Except as set forth on Schedule 10.21, neither the
------------- --------------
Company nor any Subsidiary is subject to any labor or collective bargaining
agreement. There are no existing or threatened strikes, lockouts or other labor
disputes involving the Company or any Subsidiary that singly or in the aggregate
could reasonably be expected to have a Material Adverse Effect. Hours worked by
and payment made to employees of the Company and its Subsidiaries are not in
violation of the Fair Labor Standards Act or any other applicable law, rule or
regulation dealing with such matters.
10.22 No Default. No Event of Default or Unmatured Event of Default
----------
exists or would result from the incurring by the Company or any Subsidiary of
any Debt or the granting of any Lien hereunder or under any other Loan Document.
SECTION 11 COVENANTS.
Until the expiration or termination of the Commitment and thereafter until
all Obligations are paid in full, the Company agrees that, unless at any time
the Bank shall otherwise expressly consent in writing, it will:
11.1 Reports, Certificates and Other Information. Furnish to the Bank:
-------------------------------------------
11.1.1 10-K. Promptly when available and in any event within 105 days
----
after the close of each Fiscal Year, a copy of the Company's Annual Report on
Form 10-K as filed with the SEC.
11.1.2 10-Q Promptly when available and in any event within 60 days after
----
the close of each Fiscal Quarter, a copy of the Company's Quarterly Report on
Form 10-Q as filed with the SEC.
11.1.3 Compliance Certificates. Contemporaneously with the furnishing of a
-----------------------
copy of each report pursuant to Section 11.1.1 and Section 11.1.2 and the
-------------- --------------
financial statements required therein, a duly completed compliance certificate
in the form of Exhibit B, with appropriate insertions, dated the date of such
---------
annual report or such quarterly reports and signed by the Chief Financial
Officer of the Company, containing (i) a computation of each of the financial
ratios and restrictions required to demonstrate compliance with the covenants
set forth in Section 11.6 and a statement to the effect that such officer has
------------
not become aware of any Event of Default or Unmatured Event of Default that has
occurred and is continuing or, if there is any such event, describing it and the
steps, if any, being taken to cure it and (ii) a summary aging of all accounts
receivable of the Company and its Subsidiaries, without regard to any specific
account debtor (provided, that if so requested by Bank, in Bank's sole
--------
discretion, the Company shall provide an aging of all accounts receivable of the
Company and its Subsidiaries with detailed reference to specific account
debtors).
-27-
11.1.4 Reports to the SEC and to Shareholders. Promptly upon the filing or
--------------------------------------
sending thereof, copies of all regular, periodic or special reports of the
Company or any Subsidiary filed with the SEC, copies of all registration
statements of the Company or any Subsidiary filed with the SEC, and copies of
all proxy statements or other communications made to security holders generally.
11.1.5 Notice of Default, Litigation and ERISA Matters. Promptly upon
-----------------------------------------------
becoming aware of any of the following, written notice describing the same and
the steps being taken by the Company or the Subsidiary affected thereby with
respect thereto:
(a) the occurrence of an Event of Default or an Unmatured Event of
Default;
(b) any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by the Company to the Bank which has
been instituted or, to the knowledge of the Company, is threatened against
the Company or any Subsidiary or to which any of the properties of any
thereof is subject which might reasonably be expected to have a Material
Adverse Effect;
(c) the institution of any steps by any member of the Controlled
Group or any other Person to terminate any Pension Plan, or the failure of
any member of the Controlled Group to make a required contribution to any
Pension Plan (if such failure is sufficient to give rise to a Lien under
Section 302(f) of ERISA) or to any Multiemployer Pension Plan, or the
taking of any action with respect to a Pension Plan which could result in
the requirement that the Company furnish a bond or other security to the
PBGC or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan or Multiemployer Pension Plan which could result in the
incurrence by any member of the Controlled Group of any material liability,
fine or penalty (including any claim or demand for withdrawal liability or
partial withdrawal from any Multiemployer Pension Plan), or any material
increase in the contingent liability of the Company with respect to any
post-retirement welfare plan benefit, or any notice that any Multiemployer
Pension Plan is in reorganization, that increased contributions may be
required to avoid a reduction in plan benefits or the imposition of an
excise tax, that any such plan is or has been funded at a rate less than
that required under Section 412 of the Code, that any such plan is or may
be terminated, or that any such plan is or may become insolvent;
(d) any material cancellation or material change in any insurance
maintained by the Company or any Subsidiary; or
(e) any other event (including (i) any violation of any
Environmental Law or the assertion of any Environmental Claim or (ii) the
enactment or effectiveness of any law, rule or regulation) which might
reasonably be expected to have a Material Adverse Effect.
11.1.6 Management Reports. Promptly upon the request of the Bank, copies of
------------------
all detailed financial and management reports submitted to the Company by
independent auditors in connection
-28-
with each annual or interim audit made by such auditors of the books or
financial statements of the Company.
11.1.7 Intentionally omitted.
---------------------
11.1.8 Other Information. Promptly from time to time, such other
-----------------
information concerning the Company and its Subsidiaries as the Bank may
reasonably request.
11.2 Books, Records and Inspections. Keep, and cause each Subsidiary to
------------------------------
keep, its books and records in accordance with sound business practices
sufficient to allow the preparation of financial statements in accordance with
GAAP; permit, and cause each Subsidiary to permit, the Bank or any
representative thereof to inspect the properties and operations of the Company
or such Subsidiary; and permit, and cause each Subsidiary to permit, at any
reasonable time and with reasonable notice (or at any time without notice if an
Event of Default exists), the Bank or any representative thereof to visit any or
all of its offices, to discuss its financial matters with its officers and its
independent auditors (and the Company hereby authorizes such independent
auditors to discuss such financial matters with the Bank or any representative
thereof), and to examine (and, at the expense of the Company or the applicable
Subsidiary, photocopy extracts from) any of its books or other records; and
permit, and cause each Subsidiary to permit, the Bank and its representatives to
inspect, audit, check and make copies of and extracts from the books, records,
computer data, computer programs, journals, orders, receipts, correspondence and
other data. All such inspections or audits by the Bank shall be at the Company's
expense.
11.3 Maintenance of Property; Insurance.
----------------------------------
(a) Keep, and cause each Subsidiary to keep, all property useful and
necessary in the business of the Company or such Subsidiary in good working
order and condition, ordinary wear and tear excepted.
(b) Maintain, and cause each Subsidiary to maintain, with
responsible insurance companies, such insurance as may be required by any
law or governmental regulation or court decree or order applicable to it
and such other insurance, to such extent and against such hazards and
liabilities, as is customarily maintained by companies similarly situated,
but which shall insure against all risks and liabilities of the type
identified on Schedule 10.16 and shall have insured amounts no less than,
and deductibles no higher than, those set forth on such schedule; and, upon
request of the Bank, furnish to the Bank a certificate setting forth in
reasonable detail the nature and extent of all insurance maintained by the
Company and its Subsidiaries. The Company shall cause each issuer of an
insurance policy to provide the Bank with an endorsement (i) showing loss
payable to the Bank with respect to each policy of business interruption
insurance and naming the Bank as loss payee with respect to each policy of
insurance for business interruption damage, (ii) providing that 30 days'
notice will be given to the Bank prior to any cancellation of, material
reduction or change in coverage provided by or other material modification
to such policy and (iii) reasonably acceptable in
-29-
all other respects to the Bank. The Company shall execute and deliver to
the Bank a collateral assignment, in form and substance satisfactory to the
Bank, of each business interruption insurance policy maintained by the
Company.
(c) UNLESS THE COMPANY PROVIDES THE BANK WITH EVIDENCE OF THE
INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT, THE BANK MAY PURCHASE
INSURANCE AT THE COMPANY'S EXPENSE. THIS INSURANCE MAY, BUT NEED NOT,
PROTECT THE COMPANY'S INTERESTS. THE COVERAGE THAT THE BANK PURCHASES MAY
NOT PAY ANY CLAIM THAT IS MADE AGAINST THE COMPANY. THE COMPANY MAY LATER
CANCEL ANY INSURANCE PURCHASED BY THE BANK, BUT ONLY AFTER PROVIDING THE
BANK WITH EVIDENCE THAT THE COMPANY HAS OBTAINED INSURANCE AS REQUIRED BY
THIS AGREEMENT. IF THE BANK PURCHASES INSURANCE, THE COMPANY WILL BE
RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY
OTHER CHARGES THAT MAY BE IMPOSED WITH THE PLACEMENT OF THE INSURANCE,
UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE PRINCIPAL AMOUNT
OF THE LOANS OWING HEREUNDER. THE COSTS OF THE INSURANCE MAY BE MORE THAN
THE COST OF THE INSURANCE THE COMPANY MAY BE ABLE TO OBTAIN ON ITS OWN.
11.4 Compliance with Laws; Payment of Taxes; Liabilities. (a) Comply, and
---------------------------------------------------
cause each Subsidiary to comply, in all material respects with all applicable
laws, rules, regulations, decrees, orders, judgments, licenses and permits,
except where failure to comply could not reasonably be expected to have a
Material Adverse Effect; (b) pay, and cause each Subsidiary to pay, prior to
delinquency, all taxes and other governmental charges against it or any of its
property, as well as claims of any kind which, if unpaid, might become a Lien on
any of its property; provided that the foregoing shall not require the Company
--------
or any Subsidiary to pay any such tax or charge so long as it shall contest the
validity thereof in good faith by appropriate proceedings and shall set aside on
its books adequate reserves with respect thereto in accordance with GAAP; and
(c) inform the Bank of all contingent liabilities in excess of $1,000,000 that
are not reflected in the Company's financial statements.
11.5 Maintenance of Existence, etc. Maintain and preserve, and cause each
-----------------------------
Material Subsidiary to maintain and preserve, (a) its existence and good
standing in the jurisdiction of its organization and (b) its qualification to do
business and good standing in each jurisdiction where the nature of its business
makes such qualification necessary (except in those instances in which the
failure to be qualified or in good standing does not, and is not reasonably
expected to, have a Material Adverse Effect). The Company and each Material
Subsidiary shall not change its jurisdiction of organization except upon 30
days' prior written notice to the Bank.
11.6 Financial Covenants.
-------------------
-30-
11.6.1 Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage
---------------------------
Ratio for any Computation Period to be less than 1.50 to 1.00.
11.6.2 Leverage Ratio. Not permit the ratio of Total Liabilities to
--------------
Tangible Net Worth at any time to be greater than 3.00 to 1.00.
11.6.3 Dividends. Not declare dividends during any fiscal quarter in excess
---------
of thirty-five percent (35%) of the Consolidated Net Income for the immediately
preceding four-quarter period.
11.6.4 Capital Expenditures. Not permit the aggregate amount of all Capital
--------------------
Expenditures made by the Company and its Subsidiaries in any Fiscal Year to
exceed $6,000,000, other than those made or deemed made as part of a transaction
contemplated in Section 11.11.
-------------
11.6.5 Tangible Net Worth. Not permit Tangible Net Worth at any time to be
------------------
less than $55,000,000.
11.7 Limitations on Debt. Without the prior written consent of Bank, not,
-------------------
nor permit any Subsidiary to, create, incur, assume or suffer to exist any Debt,
except:
(a) The Obligations;
(b) Debt secured by Liens permitted by Section 11.8, and extensions,
------------
renewals and refinancings thereof;
(c) Debt of majority controlled or Wholly-Owned Subsidiaries to the
Company in an amount not to exceed $30,000,000 in the aggregate at any time
outstanding;
(d) Debt of Subsidiaries other than those described in Section
-------
11.7(c) to the Company in an amount not to exceed $10,000,000 in the
-------
aggregate at any time outstanding;
(e) New additional indebtedness for borrowed money, secured or
unsecured, or in the form of purchase money obligations in an aggregate
amount at any one time outstanding not to exceed $5,000,000, other than
Obligations or indebtedness made or deemed made as part of a transaction
contemplated in Section 11.11;
-------------
(f) Non-speculative fuel Hedging Obligations incurred in the normal
course of business; provided, however, that the Company may incur
-------- -------
speculative fuel Hedging Obligations so long as such Hedging Obligations do
not exceed $10,000,000 in the aggregate at any time outstanding;
(g) Debt described on Schedule 11.7 and any extension, renewal or
-------------
refinancing thereof so long as the principal amount thereof is not
increased; and
-31-
(h) Suretyship Liabilities permitted in Section 11.21.
-------------
11.8 Liens. Not, and not permit any Subsidiary to, create or permit to
-----
exist any Lien on any of its real or personal properties, assets or rights of
whatsoever nature (whether now owned or hereafter acquired), except:
(a) Liens for taxes or other governmental charges not at the time
delinquent or thereafter payable without penalty or being contested in good
faith by appropriate proceedings and, in each case, for which it maintains
adequate reserves;
(b) Liens arising in the ordinary course of business (such as (i)
Liens of carriers, warehousemen, mechanics, landlords and materialmen and
other similar Liens imposed by law and (ii) Liens incurred in connection
with worker's compensation, unemployment compensation and other types of
social security (excluding Liens arising under ERISA) or in connection with
surety bonds, bids, performance bonds and similar obligations) for sums not
overdue or being contested in good faith by appropriate proceedings and not
involving any deposits or advances or borrowed money or the deferred
purchase price of property or services and, in each case, for which it
maintains adequate reserves;
(c) Liens described on Schedule 11.8;
-------------
(d) Liens existing on property at the time of the acquisition
thereof by the Company or any Subsidiary (and not created in contemplation
of such acquisition);
(e) attachments, appeal bonds, judgments and other similar Liens,
for sums not exceeding $100,000 arising in connection with court
proceedings, provided the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(f) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in any
material respect with the ordinary conduct of the business of the Company
or any Subsidiary;
(g) Liens arising under the Loan Documents;
(h) the replacement, extension or renewal of any Lien permitted by
Section 11.8(c) upon or in the same property theretofore subject thereto
---------------
arising out of the extension, renewal or replacement of the Debt secured
thereby (without increase in the amount thereof); and
(i) Liens arising in connection with new indebtedness permitted
under Section 11.7(e).
----------------
-32-
11.9 Intentionally Omitted.
---------------------
11.10 Restricted Payments. Except as expressly permitted by this Agreement,
-------------------
not (a) make any distribution to any of its shareholders, (b) purchase or redeem
any of its capital stock interests or other equity interests or any warrants,
options or other rights in respect thereof, (c) pay any management fees or
similar fees to any of its shareholders or any Affiliate thereof which is not a
Wholly-Owned Subsidiary of the Company, or (d) set aside funds for any of the
foregoing; provided, however, that the Company may make loans or advances to
-------- -------
shareholders, officers or directors in an aggregate amount at any time
outstanding not to exceed $1,000,000.
11.11 Mergers, Consolidations, Sales. Not, and not permit any Subsidiary
------------------------------
to, be a party to any merger or consolidation, or purchase or otherwise acquire
all or substantially all of the assets or any stock of any class of, or any
partnership, membership, equity or joint venture interest in, any other Person
if such Person is not engaged in the same line of business as the Company, or in
instances where such Person(s) are in the same business as the Company, in an
amount not to exceed $25,000,000 in the aggregate per annum, or sell, transfer,
convey or lease all or any substantial part of its assets, or sell or assign
with or without recourse any receivables, except for (a) any such merger,
consolidation, sale, transfer, conveyance, lease or assignment of or by any
Wholly-Owned Subsidiary into the Company or into, with or to any other
Wholly-Owned Subsidiary; (b) any such purchase or other acquisition by the
Company or any Wholly-Owned Subsidiary of the assets or stock of any
Wholly-Owned Subsidiary (subject to the limits of this Agreement); and (c) sales
and dispositions of assets (including the stock of Subsidiaries) for at least
fair market value (as determined by the Board of Directors of the Company) so
long as the net book value of all assets sold or otherwise disposed of in any
Fiscal Year does not exceed $5,000,000 in the aggregate and such sales and
dispositions are in the ordinary course of business and are consistent with past
practices.
11.12 Modification of Organizational Documents. Not permit the Certificate
----------------------------------------
or Articles of Incorporation, By-Laws or other organizational documents of the
Company or any Subsidiary to be amended or modified in any way which might
reasonably be expected to materially adversely affect the interests of the Bank.
11.13 Use of Proceeds. Use the proceeds of the Loans solely for the
---------------
short-term working capital requirements of the Company, to refinance the Debt to
be Repaid, for Capital Expenditures (subject to the limits of Section 11.6.4),
--------------
to repurchase common stock of the Company (subject to the limits of Section
-------
11.28),or for acquisitions of companies in the same business of the Company
-----
(subject to the limits of Section 11.11); and not use or permit any proceeds of
-------------
any Loan to be used, either directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of "purchasing or carrying" any Margin Stock.
11.14 Further Assurances. Take such actions as are necessary or as the Bank
------------------
may reasonably request from time to time (including the execution and delivery
of guaranties, security
-33-
agreements, pledge agreements, mortgages, deeds of trust, financing statements
and other documents, the filing or recording of any of the foregoing, and the
delivery of stock certificates and other collateral with respect to which
perfection is obtained by possession) to ensure that the Obligations are secured
by a first priority perfected security interest in the Collateral in favor of
the Bank.
11.15 Transactions with Affiliates. Not, and not permit any Subsidiary
----------------------------
to, enter into, or cause, suffer or permit to exist any transaction, arrangement
or contract with any of its Affiliates (other than the Company and its
Subsidiaries) which is on terms that are less favorable to the Company or such
Subsidiary than are obtainable from any Person which is not such an Affiliate.
11.16 Employee Benefit Plans. Maintain, and cause each Subsidiary to
----------------------
maintain, each Pension Plan in substantial compliance with all applicable
requirements of law and regulations.
11.17 Environmental Matters.
---------------------
(a) If any Release or Disposal of Hazardous Substances shall
occur or shall have occurred on any real property or any other assets
of the Company or any Subsidiary, the Company shall, or shall cause the
applicable Subsidiary to, cause the prompt containment and removal of
such Hazardous Substances and the remediation of such real property or
other assets as necessary to comply with all Environmental Laws and to
preserve the value of such real property or other assets. Without
limiting the generality of the foregoing, the Company shall, and shall
cause each Subsidiary to, comply with any valid Federal or state
judicial or administrative order requiring the performance at any real
property of the Company or any Subsidiary of activities in response to
the Release or threatened Release of a Hazardous Substance.
(b) To the extent that the transportation of "hazardous waste"
as defined by RCRA is permitted by this Agreement, the Company shall,
and shall cause its Subsidiaries to, dispose of such hazardous waste
only at licensed disposal facilities operating in compliance with
Environmental Laws.
11.18 Unconditional Purchase Obligations. Not, and not permit any
----------------------------------
Subsidiary to, enter into or be a party to any contract for the purchase of
materials, supplies or other property or services if such contract requires that
payment be made by it regardless of whether delivery is ever made of such
materials, supplies or other property or services; provided, however, that this
-------- -------
Section shall not prohibit the Company from entering into forward commitments
for fuel purchases in the ordinary course of business.
11.19 Inconsistent Agreements. Not, and not permit any Subsidiary to,
-----------------------
enter into any agreement containing any provision which would (a) be violated or
breached by any borrowing by the Company hereunder or by the performance by the
Company or any Subsidiary of any of its obligations hereunder or under any other
Loan Document, (b) prohibit the Company or any
-34-
Subsidiary from granting to the Bank, a Lien on any of its assets or (c) create
or permit to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make other distributions to
the Company or any other applicable Subsidiary, or pay any Debt owed to the
Company or any other Subsidiary, (ii) make loans or advances to the Company or
(iii) transfer any of its assets or properties to the Company.
11.20 Business Activities; Name; Change of Control.
--------------------------------------------
(a) Not, and not permit any Subsidiary to, engage in any line of
business other than the businesses engaged in on the date hereof and
businesses reasonably related thereto.
(b) Not, and not permit any Material Subsidiary to, change its
legal name except upon thirty (30) days' prior written notice to the
Bank.
11.21 Investments.
-----------
11.21.1 Except as expressly set forth in this Agreement, not, and
not permit any Subsidiary to, make or permit to exist any Investment in any
other Person, except (without duplication) the following:
(a) contributions by the Company to the capital of any of its
Wholly-Owned Subsidiaries that are Guarantors, or by any such
Subsidiary to the capital of any of its Wholly-Owned Subsidiaries that
are Guarantors;
(b) in the ordinary course of business, Investments by the
Company in any Subsidiary or by any Subsidiary in the Company, by way
of intercompany loans, advances or guaranties, all to the extent
permitted by Section 11.7;
------------
(c) Suretyship Liabilities not to exceed $100,000 in the
aggregate at any one time outstanding (except as otherwise permitted
hereunder);
(d) Cash Equivalent Investments;
(e) Investments in securities of account debtors received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such account debtors; and
(f) Investments listed on Schedule 11.21.
--------------
11.21.2 Not, and not permit any subsidiary to guaranty any
obligations or purchase surety bonds to secure or assume any indebtedness of (i)
its Subsidiaries other than trade credit from suppliers in an aggregate amount
not to exceed $15,000,000 per supplier at any one time
-35-
outstanding, or (ii) third parties in an aggregate amount at any one time
outstanding not to exceed $1,000,000.
11.21.3 Notwithstanding the foregoing provisions of this Section
-------
11.21, no Investment otherwise permitted hereunder shall be permitted to be made
-----
if, immediately before or after giving effect thereto, any Event of Default or
Unmatured Event of Default exists.
11.22 Fiscal Year. Not change its Fiscal Year.
----------
11.23 Cancellation of Debt. Not, and not permit any Subsidiary to,
--------------------
cancel any claim or debt owing to it, except for reasonable consideration or in
the ordinary course of business.
11.24 Intentionally omitted.
---------------------
11.25 Accounts. The Company shall maintain its primary investment
--------
accounts with the Bank, so long as the costs of Bank's products and services
remain competitive. As soon as possible, but in no event later than one hundred
and eighty (180) days after the Closing Date, the Company shall open and
thereafter maintain its primary operating account with the Bank, so long as the
Bank's products and services remain competitive.
11.26 New Subsidiaries. In the event of an acquisition or creation of
----------------
any Domestic Subsidiary or Material Foreign Subsidiary, the Company shall
deliver, or cause to be delivered as the case may be, to the Bank within thirty
(30) days (provided, in the case of a Material Foreign Subsidiary, such time
--------
period shall be extended to sixty (60) days with regards to (b), (c) and (d)
below) of such acquisition or creation:
(a) in the case of a Domestic Subsidiary, a Guaranty executed by such
Subsidiary substantially in the form of Exhibit D;
---------
(b) in the case of a Material Foreign Subsidiary, a Pledge Agreement
substantially in the form of Exhibit C executed by the Company or
---------
a Subsidiary, as applicable, (unless, in Bank's sole discretion,
such Pledge Agreement is not required as the Collateral to be
pledged thereby is already covered by an existing Pledge
Agreement) together with (x) stock certificates or other
appropriate evidence of ownership representing sixty-five percent
(65%) of the voting stock of such Material Foreign Subsidiary, (y)
duly executed stock powers of assignment or stock transfer forms
in blank affixed thereto and (z) such other documents as Bank may
request including UCC-1 financing statements;
(c) an opinion of counsel to such Material Foreign Subsidiary and the
Company or a Subsidiary, as applicable, in form and substance
acceptable to Bank; and
-36-
(d) copies of all current entity documents, including articles of
incorporation or organization, By-laws, operating or partnership
agreements, certificates of good standing or active status,
resolutions of the Board of Directors, members, managers, partners
or appropriate committees thereof (each as applicable) of such
Material Foreign Subsidiary.
11.27 Sale and Leaseback Transactions. Not, and not permit any
-------------------------------
Subsidiary to, enter into asset sale and leaseback transactions; provided,
--------
however, that the Company and Subsidiaries may enter into such transactions in
-------
an aggregate amount not to exceed $5,000,000 in any Fiscal Year.
11.28 Repurchase Stock. Not, and not permit any Subsidiary to, purchase
----------------
common stock of the Company; provided, however, that the Company and
-------- -------
Subsidiaries may purchase common stock of the Company in an aggregate amount not
to exceed $10,000,000.
SECTION 12 EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
The obligation of the Bank to make Loans and to issue Letters of Credit
is subject to the following conditions precedent:
12.1 Initial Credit Extension. The obligation of the Bank to make
------------------------
available the initial Loan and issue any initial Letters of Credit is, in
addition to the conditions precedent specified in Section 12.2, subject to the
------------
conditions precedent that (1) all Debt to be Repaid has been (or concurrently
with the initial borrowing will be) paid in full, and that all agreements and
instruments governing the Debt to be Repaid and that all Liens securing the Debt
to be Repaid have been (or concurrently with the initial borrowing will be)
terminated, (2) the Bank has received a counterpart copy of this Agreement
executed by the Company and (3) the Bank shall have received all of the
following, each duly executed and dated the Closing Date (or such earlier date
as shall be satisfactory to the Bank), in form and substance satisfactory to the
Bank (and the date on which all such conditions precedent have been satisfied or
waived in writing by the Bank is called the "Closing Date"):
------------
12.1.1 Note. The Note executed by the Company.
----
12.1.2 Resolutions. Certified copies of resolutions of the Board of
-----------
Directors of the Company authorizing the execution, delivery and performance by
the Company of this Agreement, the Note, the Pledge Agreement and the other Loan
Documents to which the Company is a party; and certified copies of resolutions
of the Board of Directors of each other Loan Party authorizing the execution,
delivery and performance by such Loan Party of each Loan Document to which such
entity is a party.
12.1.3 Consents, etc. Certified copies of all documents evidencing any
-------------
necessary corporate, limited liability company, partnership or other entity
action, consents and governmental approvals (if any) required for the execution,
delivery and performance by the Company and each other Loan Party of the
documents referred to in Section 12.
----------
-37-
12.1.4 Incumbency and Signature Certificates. A certificate of the
-------------------------------------
Secretary or an Assistant Secretary (or other appropriate representative) of
each Loan Party certifying the names of the officer or officers of such entity
authorized to sign the Loan Documents to which such entity is a party, together
with a sample of the true signature of each such officer (it being understood
that the Bank may conclusively rely on each such certificate until formally
advised by a like certificate of any changes therein).
12.1.5 Pledge Agreement. A counterpart of each Pledge Agreement,
----------------
executed by the Company or a Subsidiary, as applicable.
12.1.6 Opinions of Counsel. The opinion of Xxxxxx & Xxxxx, LLP
-------------------
substantially in the form of Exhibit E, and such other opinions of counsel as
---------
the Bank may reasonably require including the opinion of legal counsel,
acceptable by the Bank, from an attorney licensed to practice in each country
where such Material Foreign Subsidiaries whose stock or other securities are
being pledged pursuant to any Pledge Agreement are organized.
12.1.7 Insurance. Evidence satisfactory to the Bank of the existence of
---------
insurance required to be maintained pursuant to Section 11.3(b), together with
---------------
evidence that the Bank has been named as a lender's loss payee and an additional
insured on all related insurance policies.
12.1.8 Payment of Fees. Evidence of payment by the Company of all
---------------
accrued and unpaid fees (including fees under Section 5), costs and expenses to
---------
the extent due and payable on the Closing Date, including any documentary stamp
taxes and intangible taxes, together with all Attorney Costs of the Bank to the
extent invoiced prior to the Closing Date, plus such additional amounts of
----
Attorney Costs as shall constitute the Bank's reasonable estimate of Attorney
Costs incurred or to be incurred by the Bank through the closing proceedings;
provided that in the absence of unforeseen circumstances or prolonged
--------
negotiations as determined by the Bank in its reasonable discretion, such
Attorney Costs, exclusive of disbursements, shall not exceed $25,000; provided,
--------
further that such estimate shall not thereafter preclude final settling of
accounts between the Company and the Bank.
12.1.9 Solvency Certificate, Certificate of No Material Adverse Change.
---------------------------------------------------------------
(i) a Certificate of No Material Adverse Change, substantially in the form of
Exhibit G, executed by the Chief Executive Officer of the Company, (ii) Solvency
---------
Certificates, substantially in the form of Exhibit H, executed by the Chief
---------
Financial Officer of each Guarantor, and (iii) such additional certificates as
Bank may from time to time require.
12.1.10 Search Results; Lien Terminations. Certified copies of Uniform
---------------------------------
Commercial Code Requests for Information or Copies (Form UCC-11), or a similar
search report certified by a party acceptable to the Bank, dated a date
reasonably near to the Closing Date, listing all effective financing statements
which name the Company and each Subsidiary (under their present names and any
previous names or trade names) as debtors, together with (i) copies of such
financing statements, (ii) executed copies of proper Uniform Commercial Code
Form UCC 3 termination statements, if
-38-
any, necessary to release all Liens and other rights of any Person in any
property or rights of the Company or any Subsidiary including in any Collateral
described in the Collateral Documents, previously granted by any Person (other
than Liens permitted by Section 11.8) and (iii) such other Uniform Commercial
------------
Code Form UCC 3 termination statements as the Bank may reasonably request.
12.1.11 Filings, Registrations and Recordings. The Bank shall have
-------------------------------------
received each document (including Uniform Commercial Code financing statements)
required by the Collateral Documents or under law or reasonably requested by the
Bank to be filed, registered or recorded in order to create in favor of the
Bank, a perfected Lien in the Collateral described therein, prior and superior
to any other Person, in proper form for filing, registration or recording.
12.1.12 Closing Certificate. A certificate signed by a vice president
-------------------
of the Company dated as of the Closing Date, affirming the matters set forth in
Section 12.2.1 as of the Closing Date.
--------------
12.1.13 Governmental Approvals. All governmental and third party
----------------------
approvals, if any, necessary in connection with the financings contemplated
herein and the continuing operations of the Company and its Subsidiaries shall
have been obtained on terms reasonably satisfactory to the Bank and shall be in
full force and effect.
12.1.14 Financial Statements. Copies of the consolidated financial
--------------------
statements of the Company for the Fiscal Quarter ended September 30, 2001, and
such financial statements shall not disclose, in the judgment of the Bank, any
material adverse change from what was reflected in the financial statements
furnished to Bank prior to the date hereof.
12.1.15 Guaranty. Counterpart copies of the Guaranty, executed by each
--------
of the Guarantors.
12.1.16 Organizational Documents. Such evidence as the Bank may
------------------------
reasonably require to verify that the Company and each Loan Party are duly
organized or formed, validly existing, in good standing or with active status
and qualified to engage in business (in each's jurisdiction of organization and
each other jurisdiction where the failure to be so qualified would have a
Material Adverse Effect), including certified copies of the Articles of
Incorporation and Bylaws (or other similar entity documents, as applicable),
certificates of good standing/active status and/or qualification to engage in
business.
12.1.17 Master Letter of Credit Agreement. A copy of the Master Letter
---------------------------------
of Credit Agreement, executed by the Company.
12.1.18 Other. Such other documents as the Bank may reasonably request.
-----
12.2 Conditions. The obligation of the Bank to make each Loan and issue
----------
each Letter of Credit is subject to the following further conditions precedent
that:
-39-
12.2.1 Compliance with Warranties, No Default, etc. Both before and
-------------------------------------------
after giving effect to any borrowing and the issuance of any Letter of Credit
the following statements shall be true and correct:
(a) the representations and warranties of the Company, and each
Loan Party set forth in this Agreement and the other Loan Documents
(including the material adverse change and litigation representations)
shall be true and correct in all material respects with the same effect
as if then made (except to the extent stated to relate to a specific
earlier date, in which case such representations and warranties shall be
true and correct as of such earlier date); and
(b) no Event of Default or Unmatured Event of Default shall
have then occurred and be continuing.
12.2.2 Confirmatory Certificate. If requested by the Bank, the Bank
------------------------
shall have received a certificate dated the date of such requested Loan or
Letter of Credit and signed by a duly authorized representative of the Company
as to the matters set out in Section 12.2.1 (it being understood that each
--------------
request by the Company for the making of a Loan or issuance of a Letter of
Credit shall be deemed to constitute a warranty by the Company that the
conditions precedent set forth in Section 12.2.1 will be satisfied at the time
--------------
of the making of such Loan or issuance of a Letter of Credit), together with
such other documents as the Bank may reasonably request in support thereof.
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT.
13.1 Events of Default. Each of the following shall constitute an
-----------------
Event of Default under this Agreement:
13.1.1 Non-Payment of the Loans, etc. Default in the payment when due
-----------------------------
of the principal of any Loan; or default, and continuance thereof for five days,
in the payment when due of any interest, fee, Reimbursement Obligation with
respect to any Letter of Credit or other amount payable by the Company hereunder
or under any other Loan Document.
13.1.2 Non-Payment or other Default of Other Debt. Any default shall
------------------------------------------
occur under the terms applicable to any Debt of the Company or any Subsidiary
and such default shall (a) consist of the failure to pay such Debt when due,
whether by acceleration or otherwise, or (b) accelerate the maturity of such
Debt or permit the holder or holders thereof, or any trustee or agent for such
holder or holders, to cause such Debt to become due and payable (or require the
Company or any Subsidiary to purchase or redeem such Debt) prior to its
expressed maturity. Any other default shall occur under the terms applicable to
any Debt of the Company or any Subsidiary which might reasonably be expected to
have a Material Adverse Effect.
-40-
13.1.3 Other Material Obligations. Default in the payment when due, or
--------------------------
in the performance or observance of, any material obligation of, or condition
agreed to by, the Company or any Subsidiary with respect to any material
purchase or lease of goods or services where such default, singly or in the
aggregate with all other such defaults, might reasonably be expected to have a
Material Adverse Effect.
13.1.4 Bankruptcy, Insolvency, etc. The Company or any Subsidiary
---------------------------
becomes insolvent or generally fails to pay, or admits in writing its inability
or refusal to pay, debts as they become due; or the Company or any Subsidiary
applies for, consents to, or acquiesces in the appointment of a trustee,
receiver or other custodian for the Company or such Subsidiary or any property
thereof, or makes a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for the Company or any Subsidiary or for a
substantial part of the property of any thereof and is not discharged within 60
days; or any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, is commenced in respect of the Company or any
Subsidiary, and if such case or proceeding is not commenced by the Company or
such Subsidiary, it is consented to or acquiesced in by the Company or such
Subsidiary, or remains for 30 days undismissed; or the Company or any Subsidiary
takes any action to authorize, or in furtherance of, any of the foregoing.
13.1.5 Non-Compliance with Loan Documents. (a) Failure by the Company
----------------------------------
to comply with or to perform any covenant set forth in Sections 11.1.5(a), 11.5
------------------ ----
through 11.15, and 11.20 through 11.22 and 11.26; or (b) failure by the Company
----- ----- ----- -----
or any Loan Party to comply with or to perform any other provision of this
Agreement or any other Loan Document (and not constituting an Event of Default
under any other provision of this Section 13) and continuance of such failure
----------
described in this Section 13.1.5, clause (b) for 30 days.
--------------------------
13.1.6 Warranties. Any warranty, representation or certification made
----------
by the Company or, any Loan Party herein or any other Loan Document is breached
or is false or misleading in any material respect, or any schedule, certificate,
financial statement, report, notice or other writing furnished by the Company or
any Loan Party to the Bank in connection herewith is false or misleading in any
material respect on the date as of which the facts therein set forth are stated
or certified.
13.1.7 Pension Plans. (i) Institution of any steps by the Company or
-------------
any other Person to terminate a Pension Plan if as a result of such termination
the Company could be required to make a contribution to such Pension Plan, or
could incur a liability or obligation to such Pension Plan, in excess of
$250,000; (ii) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; or (iii) there
shall occur any withdrawal or partial withdrawal from a Multiemployer Pension
Plan and the withdrawal liability (without unaccrued interest) to Multiemployer
Pension Plans as a result of such withdrawal (including any outstanding
withdrawal liability that the Company and the Controlled Group have incurred on
the date of such withdrawal) exceeds $250,000.
-41-
13.1.8 Judgments. Final judgments which, in the aggregate at any one
---------
time outstanding, exceed applicable insurance coverage by $1,000,000 or more
shall be rendered against the Company or any Subsidiary and shall not have been
paid, discharged or vacated or had execution thereof stayed pending appeal
within 90 days after entry or filing of such judgments.
13.1.9 Invalidity of Collateral Documents, etc. Any Collateral Document
---------------------------------------
shall cease to be in full force and effect; or the Company or any Subsidiary (or
any Person by, through or on behalf of the Company or any Subsidiary) shall
contest in any manner the validity, binding nature or enforceability of any
Collateral Document.
13.2 Effect of Event of Default. If any Event of Default described in
--------------------------
Section 13.1.4 shall occur, the Commitment (if they have not theretofore
--------------
terminated) shall immediately terminate and the Loans and all other obligations
hereunder shall become immediately due and payable, and the Company shall be
required to Cash Collateralize all Letters of Credit, all without presentment,
demand, protest or notice of any kind; and, if any other Event of Default shall
occur and be continuing, the Bank shall declare the Commitment (if they have not
theretofore terminated) to be terminated and/or declare all Loans and all other
obligations hereunder to be due and payable, and/or demand that the Company Cash
Collateralize all Letters of Credit whereupon the Commitment (if they have not
theretofore terminated) shall immediately terminate and/or all Loans and all
other obligations hereunder shall become immediately due and payable, all
without presentment, demand, protest or notice of any kind. The Bank shall
promptly advise the Company of any such declaration, but failure to do so shall
not impair the effect of such declaration. Notwithstanding the foregoing, the
effect as an Event of Default of any event described in this Section 13 may be
----------
waived by the Bank. Any cash collateral delivered hereunder shall be held by the
Bank (without liability for interest thereon) and applied to the Obligations
arising in connection with any drawing under a Letter of Credit. At the
expiration or termination of all Letters of Credit, such cash collateral shall
be applied to any remaining Obligations hereunder and any excess shall be
delivered to the Company or as a court of competent jurisdiction may direct.
SECTION 14 GENERAL.
14.1 Waiver; Amendments. No delay on the part of the Bank in the
------------------
exercise of any right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy. No amendment, modification or waiver of, or consent with
respect to, any provision of this Agreement or the Notes shall in any event be
effective unless the same shall be in writing and signed and delivered by the
Bank, and then any such amendment, modification, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
14.2 Notices. Except as otherwise provided in Sections 2.2.2 and
------- --------------
2.2.3, all notices hereunder shall be in writing (including facsimile
-----
transmission) and shall be sent to the applicable
-42-
party at its address shown on Schedule 14.2 or at such other address as such
-------------
party may, by written notice received by the other parties, have designated as
its address for such purpose. Notices sent by facsimile transmission shall be
deemed to have been given when sent; notices sent by mail shall be deemed to
have been given three Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand delivery or overnight
courier service shall be deemed to have been given when received. For purposes
of Sections 2.2.2 and 2.2.3, the Bank shall be entitled to rely on telephonic
-------------- -----
instructions from any person that the Bank in good faith believes is an
authorized officer or employee of the Company, and the Company shall hold the
Bank harmless from any loss, cost or expense resulting from any such reliance.
14.3 Computations. Where the character or amount of any asset or
------------
liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP, consistently applied; provided that if the Company
--------
notifies the Bank that the Company wishes to amend any covenant in Section 11 to
----------
eliminate or to take into account the effect of any change in GAAP on the
operation of such covenant (or if the Bank notifies the Company that the Bank
wishes to amend Section 11 for such purpose), then the Company's compliance with
----------
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Bank.
14.4 Regulation U. The Bank represents that it in good faith is not
------------
relying, either directly or indirectly, upon any Margin Stock as collateral
security for the extension or maintenance by it of any credit provided for in
this Agreement.
14.5 Costs, Expenses and Taxes. Subject to the limits expressly set
-------------------------
forth in this Agreement, the Company agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Bank (including Attorney Costs) in
connection with the preparation, execution, syndication, delivery and
administration of this Agreement, the other Loan Documents and all other
documents provided for herein or delivered or to be delivered hereunder or in
connection herewith (including any amendment, supplement or waiver to any Loan
Document), and all reasonable out-of-pocket costs and expenses (including
Attorney Costs) incurred by the Bank after an Event of Default in connection
with the enforcement of this Agreement, the other Loan Documents or any such
other documents. In addition, the Company agrees to pay, and to save the Bank
harmless from all liability for, (a) any stamp or other taxes (including
documentary stamp taxes and intangible taxes, but excluding income taxes and
franchise taxes based on net income) which may be payable in connection with the
execution and delivery of this Agreement, the borrowings hereunder, the issuance
of the Notes or the execution and delivery of any other Loan Document or any
other document provided for herein or delivered or to be delivered hereunder or
in connection herewith and (b) any fees of the Company's auditors in connection
with any reasonable exercise by the Bank of its rights pursuant to Section 11.2.
------------
All obligations provided for in this Section 14.5 shall survive repayment of the
------------
Loans, cancellation of the Notes, and termination of this Agreement.
-43-
14.6 Subsidiary References. The provisions of this Agreement
---------------------
relating to Subsidiaries shall apply only during such times as the Company has
one or more Subsidiaries.
14.7 Captions. Section captions used in this Agreement are for
--------
convenience only and shall not affect the construction of this Agreement.
14.8 Assignments; Participations.
---------------------------
14.8.1 Assignments. Subject to the approval of the Company, such
-----------
approval not to be unreasonably withheld or delayed, the Bank may at any time
assign and delegate to one or more commercial banks or financial institutions
(any Person to whom such an assignment and delegation is to be made being herein
called an "Assignee") all or any fraction of the Bank's Loans and Commitment
--------
(which assignment and delegation shall be of a constant, and not a varying,
percentage of all the Bank's Loans and Commitment); provided that no assignment
--------
and delegation may be made to any Person if, at the time of such assignment and
delegation, the Company would be obligated to pay any greater amount under
Section 7.5 or Section 8 to the Assignee than the Company is then obligated to
----------- ---------
pay to the Bank under such Sections (and if any assignment is made in violation
of the foregoing, the Company will not be required to pay the incremental
amounts).
From and after the date on which the conditions described above have
been met, such Assignee shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee pursuant to such Assignment Agreement,
shall have the rights and obligations of the Bank hereunder and the Bank, to the
extent that rights and obligations hereunder have been assigned and delegated by
it pursuant to such Assignment Agreement, shall be released from its obligations
hereunder.
Notwithstanding the foregoing provisions of this Section 14.8.1 or any
--------------
other provision of this Agreement, the Bank may at any time assign all or any
portion of its Loans and its Note to a Federal Reserve Bank (but no such
assignment shall release the Bank from any of its obligations hereunder).
14.8.2 Participations. Subject to the approval of the Company, such
--------------
approval not to be unreasonably withheld or delayed, the Bank may at any time
sell to one or more commercial banks or other Persons participating interests in
any Loan owing to the Bank, the Note held by the Bank, the Commitment of the
Bank, the interest of the Bank in any Letter of Credit or any other interest of
such Bank hereunder (any Person purchasing any such participating interest being
herein called a "Participant"). In the event of the sale by the Bank of a
-----------
participating interest to a Participant, (x) the Bank shall remain the holder of
the Note for all purposes of this Agreement, (y) the Company shall continue to
deal solely and directly with the Bank in connection with the Bank's rights and
obligations hereunder and (z) all amounts payable by the Company shall be
determined as if the Bank had not sold such participation and shall be paid
directly to the Bank. No Participant shall have any direct or indirect voting
rights hereunder. The Bank agrees to incorporate the requirements of the
preceding sentence into each
-44-
participation agreement which the Bank enters into with any Participant. The
Company agrees that if amounts outstanding under this Agreement and the Note are
due and payable (as a result of acceleration or otherwise), each Participant
shall be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement, to the same extent as if the
amount of its participating interest were owing directly to it as the Bank under
this Agreement or Note or a Letter of Credit; provided that such right of setoff
--------
shall be subject to the obligation of each Participant to share with the Bank,
and the Bank agrees to share with each Participant, as provided in Section 7.4.
-----------
The Company also agrees that each Participant shall be entitled to the benefits
of Section 7.5 and Section 8 as if it were the Bank (provided that no
----------- --------- --------
Participant shall receive any greater compensation pursuant to Section 7.5 or
-----------
Section 8 than would have been paid to the Bank if no participation had been
---------
sold).
14.9 Governing Law. This Agreement shall be a contract made under and
-------------
governed by the internal laws of the State of Florida applicable to contracts
made and to be performed entirely within such State. Whenever possible each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Company and rights of the Bank expressed
herein or in any other Loan Document shall be in addition to and not in
limitation of those provided by applicable law.
14.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
14.11 Successors and Assigns. This Agreement shall be binding upon the
----------------------
Company, the Bank and their respective successors and assigns, and shall inure
to the benefit of the Company, the Bank and the successors and assigns of the
Bank.
14.12 Indemnification by the Company. In consideration of the
------------------------------
execution and delivery of this Agreement by the Bank and the agreement to extend
the Commitment provided hereunder, the Company hereby agrees to indemnify,
exonerate and hold the Bank and each of the officers, directors, employees,
Affiliates and agents of the Bank (each a "Bank Party") free and harmless from
----------
and against any and all actions, causes of action, suits, losses, liabilities,
damages and expenses, including Attorney Costs (collectively, the "Indemnified
-----------
Liabilities"), incurred by the Bank Parties or any of them as a result of, or
-----------
arising out of, or relating to (i) any tender offer, merger, purchase of stock,
purchase of assets or other similar transaction financed or proposed to be
financed in whole or in part, directly or indirectly, with the proceeds of any
of the Loans, (ii) the use, handling, release, emission, discharge,
transportation, storage, treatment or disposal of any hazardous substance at any
property owned or leased by the Company or any Subsidiary, (iii) any violation
of any Environmental Laws with respect to conditions at any property owned or
leased by the Company or any Subsidiary or the operations conducted thereon,
(iv) the investigation, cleanup or remediation of offsite locations at which the
Company
-45-
or any Subsidiary or their respective predecessors are alleged to have directly
or indirectly disposed of hazardous substances or (v) the execution, delivery,
performance or enforcement of this Agreement or any other Loan Document by any
of the Bank Parties, except for any such Indemnified Liabilities arising on
account of the applicable Bank Party's gross negligence or willful misconduct.
If and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. All obligations provided for in this Section
-------
14.12 shall survive repayment of the Loans, cancellation of the Notes, any
-----
foreclosure under, or any modification, release or discharge of, any or all of
the Collateral Documents and termination of this Agreement.
14.13 Nonliability of Bank. The relationship between the Company on
--------------------
the one hand and the Bank on the other hand shall be solely that of borrower and
lender. The Bank shall not have any fiduciary responsibility to the Company. The
Bank does not undertake any responsibility to the Company to review or inform
the Company of any matter in connection with any phase of the Company's business
or operations. The Company agrees that the Bank shall have no liability to the
Company (whether sounding in tort, contract or otherwise) for losses suffered by
the Company in connection with, arising out of, or in any way related to the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the Bank. The Bank shall have no liability with respect
to, and the Company hereby waives, releases and agrees not to xxx for, any
special, indirect or consequential damages suffered by the Company in connection
with, arising out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.
-46-
14.14 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
-------------------------------------------
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF FLORIDA OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST
--------
ANY GUARANTOR, ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE BANK'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH GUARANTOR, COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF FLORIDA AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF FLORIDA. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
14.15 Waiver of Jury Trial. EACH OF THE COMPANY AND THE BANK HEREBY
--------------------
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
Signatures appear on following page
-47-
Delivered as of the day and year first above written.
WORLD FUEL SERVICES CORPORATION
By: /s/ XXXXXX XXXXXXX
-----------------------------------------------
Title: Xxxxxx Xxxxxxx, Chief Financial Officer
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ XXXXXX XXXXXX
-----------------------------------------------
Title: Xxxxxx Xxxxxx, First Vice President
STATE OF NEW YORK )
)SS:
COUNTY OF BRONX )
The foregoing instrument was acknowledged before me this 7th day of
December, 2001 by Xxxxxx Xxxxxxx, Chief Financial Officer of World Fuel Services
Corporation.
Personally Known______OR Produced Identification X
----
Type of Identification Produced Driver's License
----------------------------------------------
Print or Stamp Name: Xxxxxx X. Xxxxxxx
Notary Public, State of New York at Large
Commission No.:01ME6019692
My Commission Expires: February 16, 0000
-00-
XXXXX XX XXXXXXX )
) SS:
COUNTY OF MIAMI-DADE)
The foregoing instrument was acknowledged before me this 6th day of
December, 2001 by Xxxxxx Xxxxxx, First Vice President of LaSalle Bank National
Association.
Personally Known X OR Produced Identification ____________
-
Type of Identification Produced __________________________________________
Print or Stamp Name: Xxxxxx X. Xxxx, Esq.
Notary Public, State of Florida at Large
Commission No.: CC884570
My Commission Expires: November 26, 2003
-49-
PRICING SCHEDULE
----------------
The Eurodollar Margin, the Prime Rate Margin, the Non-Use Fee Rate and
the Letter of Credit Fee Rate shall be determined as set forth below.
The Eurodollar Margin, the Prime Rate Margin, the Non-Use Fee Rate and
the Letter of Credit Fee Rate shall be equal to the applicable rate per annum
set forth in the table below opposite the applicable Total Liabilities to
Tangible Net Worth Ratio:
--------------------------------------------------------------------------------------------------------
Letter of
Eurodollar Prime Rate Non-Use Fee Credit Fee
Total Liabilities/Tangible Net Worth Margin Margin* Rate Rate
--------------------------------------------------------------------------------------------------------
*** 2.50x 1.50% -0.75% .375% 1.00%
--------------------------------------------------------------------------------------------------------
*** 2.25 ** 2.50x 1.375% -1.00% .325% .95%
--------------------------------------------------------------------------------------------------------
*** 2.00x ** 2.25x 1.325% -1.25% .250% .85%
--------------------------------------------------------------------------------------------------------
** 2.00x 1.25% -1.50% .200% .75%
--------------------------------------------------------------------------------------------------------
The Eurodollar Margin, the Prime Rate Margin, the Non-Use Fee Rate and the
Letter of Credit Fee Rate shall be adjusted, to the extent applicable, on the
60th (or, in the case of the last Fiscal Quarter of each Fiscal Year, 105th) day
after the end of each Fiscal Quarter based on the Total Liabilities to Tangible
Net Worth Ratio as of the last day of such Fiscal Quarter. Notwithstanding the
foregoing, no reduction to the foregoing interest rate margins or fee rates
shall become effective at any time when an Event of Default or Unmatured Event
of Default has occurred and is continuing.
_______________________________
* Minus sign indicates a negative number.
** less than
*** more than or equal to
-50-
