2012 AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of December 21, 2012
among
PATRIOT TRANSPORTATION HOLDING, INC.
as Borrower
and
WELLS FARGO BANK, N.A.
as Lender
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS; CONSTRUCTION 1
Section 1.1 Definitions 1
Section 1.2 Classifications of Loans
and Borrowings 16
Section 1.3 Accounting Terms and
Determination 16
Section 1.4 Terms Generally 16
ARTICLE 2 AMOUNT AND TERMS OF THE COMMITMENTS 17
Section 2.1 General Description of
Facility 17
Section 2.2 Revolving Loans 17
Section 2.3 Procedure for Revolving
Loan Borrowings 17
Section 2.4 Term Loan Commitment 18
Section 2.5 Procedure for Term
Borrowing 18
Section 2.6 Funding of Borrowings 18
Section 2.7 Interest Elections 18
Section 2.8 Optional Reduction and
Termination of
Commitments 19
Section 2.9 Repayment of Loans 19
Section 2.10 Evidence of
Indebtedness 19
Section 2.11 Optional Prepayments 20
Section 2.12 Interest on Loans 20
Section 2.13 Fees 21
Section 2.14 Computation of Interest
and Fees 22
Section 2.15 Inability to Determine
Interest Rates 22
Section 2.16 Illegality 23
Section 2.17 Increased Costs 23
Section 2.18 Funding Indemnity 24
Section 2.19 Taxes 24
Section 2.20 Payments Generally 25
Section 2.21 Mitigation of
Obligations 25
Section 2.22 Letter of Credit
Commitment 26
Section 2.23 Procedure for Issuance
and Reimbursement of
Letters of Credit 26
Section 2.24 Increased Cost 26
Section 2.25 Obligations Absolute 27
Section 2.26 Letter of Credit
Documents 27
ARTICLE 3 CONDITIONS PRECEDENT TO LOANS 28
Section 3.1 Conditions To
Effectiveness 28
Section 3.2 Each Credit Event 29
ARTICLE 4 REPRESENTATIONS AND WARRANTIES 30
Section 4.1 Existence; Power 30
Section 4.2 Organizational Power;
Authorization 30
Section 4.3 Governmental Approvals;
No Conflicts 30
Section 4.4 Financial Statements 30
Section 4.5 Litigation and
Environmental Matters 31
Section 4.6 Compliance with Laws
and Agreements 31
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Section 4.7 Investment Company Act,
Etc. 31
Section 4.8 Taxes 31
Section 4.9 Margin Regulations 31
Section 4.10 ERISA 32
Section 4.11 Ownership of Property 32
Section 4.12 Disclosure 32
Section 4.13 Labor Relations 32
Section 4.14 Subsidiaries 33
Section 4.15 Legal Name 33
Section 4.16 No Restrictions on
Dividends 33
Section 4.17 Solvency 33
Section 4.18 Insurance 33
Section 4.19 Outstanding
Indebtedness 33
Section 4.20 Letters of Credit Issued
Outside the Provisions of
the Agreement 33
ARTICLE 5 AFFIRMATIVE COVENANTS 33
Section 5.1 Financial Statements and
Other Information 34
Section 5.2 Notices of Material
Events 35
Section 5.3 Existence; Conduct of
Business 35
Section 5.4 Compliance with Laws,
Etc. 36
Section 5.5 Payment of Obligations 36
Section 5.6 Books and Records 36
Section 5.7 Visitation, Inspection,
Etc. 36
Section 5.8 Maintenance of Properties;
Insurance 36
Section 5.9 Use of Proceeds 36
Section 5.10 Additional Subsidiaries 37
Section 5.11 Deposit Relationship 37
ARTICLE 6 FINANCIAL COVENANTS 37
Section 6.1 Leverage Ratio 37
Section 6.2 Fixed Charge Coverage
Ratio 37
ARTICLE 7 NEGATIVE COVENANTS 38
Section 7.1 Indebtedness 38
Section 7.2 Negative Pledge 39
Section 7.3 Fundamental Changes. 40
Section 7.4 Investments, Loans,
Etc. 41
Section 7.5 Restricted Payments 42
Section 7.6 Sale of Assets 42
Section 7.7 Transactions with
Affiliates 42
Section 7.8 Restrictive Agreements 43
Section 7.9 Sale and Leaseback
Transactions 43
Section 7.10 Hedging Agreements 43
Section 7.11 Amendment to Material
Documents 43
Section 7.12 Permitted Subordinated
Indebtedness 44
Section 7.13 Accounting Changes 44
Section 7.14 Name Changes 44
ARTICLE 8 EVENTS OF DEFAULT 44
Section 8.1 Events of Default 44
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ARTICLE 9 RESERVED 47
ARTICLE 10 MISCELLANEOUS 47
Section 10.1 Notices 47
Section 10.2 Waiver; Amendments. 48
Section 10.3 Expenses;
Indemnification 49
Section 10.4 Successors and Assigns 50
Section 10.5 Governing Law;
Jurisdiction; Consent to
Service of Process 51
Section 10.6 ARBITRATION 51
Section 10.7 Right of Setoff 53
Section 10.8 Counterparts;
Integration 53
Section 10.9 Survival 54
Section 10.10 Severability 54
Section 10.11 Confidentiality 54
Section 10.12 Interest Rate
Limitation 54
Section 10.13 US PATRIOT Act Notice 55
Schedules
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B Form of Term Note
Exhibit C - Form of Subsidiary
Guarantee Agreement
with Schedule I and
Annex I thereto
Exhibit D - Form of Indemnity,
Subrogation and
Contribution Agreement
with Schedule I and Annex
I thereto
Exhibit 2.3 - Notice of Revolving Loan
Borrowing
Exhibit 2.5 Notice of Term Loan
Borrowing
Exhibit 2.7 - Notice of Continuation/
Conversion
Exhibit 3.1(b)(iv) - Form of
Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's
Certificate
Annexes
Annex I Captive Investment
Policy Statement
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2012 AMENDED AND RESTATED CREDIT AGREEMENT
THIS 2012 AMENDED AND RESTATED CREDIT AGREEMENT
(this "Agreement") is made and entered into as of
December 21, 2012, by and among PATRIOT TRANSPORTATION
HOLDING, INC., a Florida corporation (the "Borrower")
and WELLS FARGO BANK, N.A. (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower, Wachovia Bank, National
Association ("Wachovia"), Bank of America, N.A. ("Bank
of America"), SunTrust Bank ("SunTrust") and Compass Bank
("Compass") are parties to an Amended and Restated Credit
Agreement dated as of November 10, 2004, as amended (the
"Original Credit Agreement"), with Wachovia named therein
as Administrative Agent; and
WHEREAS, the parties wish to make certain
modifications to the Original Credit Agreement, including
the designation of Wells Fargo Bank, N.A., as successor by
merger to Wachovia, as the sole lender under the revolving
credit facility contemplated for the Original Credit
Agreement, to increase the principal amount of such
revolving credit facility to $40,000,000, to provide for a
term loan facility in the principal amount of $15,000,000,
to eliminate the provisions relating to the Administrative
Agent and to make other conforming changes, all as more
fully set forth below; and
WHEREAS, subject to the terms and conditions of
this Agreement, the Lender is willing to establish a
modified revolving credit facility and a new term loan
facility for the benefit of the Borrower.
NOW, THEREFORE, in consideration of the premises
and the mutual covenants herein contained, the Borrower
and the Lender agree that the Original Credit Agreement
is amended and restated to read as follows:
ARTICLE 1
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. In addition to
the other terms defined herein, the following terms used
herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms
of the terms defined):
"Affiliate" shall mean, as to any Person, any
other Person that directly, or indirectly through one or
more intermediaries, Controls, is Controlled by, or is
under common Control with, such Person.
"Applicable Margin" shall mean the respective number
of basis points per annum designated below determined
based on the Borrower's Leverage Ratio:
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LEVEL Leverage Applicable Margin
Ratio (basis points per annum)
Base Rate LIBOR(1) Commitment
Fee
I >=.45 to .55 100.0 150.0 25.0
II >=.35 to <.45 75.0 125.0 20.0
III <.35 25.0 100.0 15.0
; provided, however, that adjustments, if any, to the
Applicable Margin based on changes in the Borrower's
Leverage Ratio as set forth above shall be calculated
by the Lender quarterly, based upon the Borrower's
quarterly financial statements, on a rolling four
quarter basis, beginning with the Borrower's statements
for the period ended September 30, 2011, and shall
become effective (each an "Interest Rate Change Date"),
(i) if interest is based on the Base Rate, on the third
Day after the Lender receives the Covenant Compliance
Certificate and/or the financial statements reflecting
such change in the Borrower's Leverage Ratio or (ii) if
interest is based on LIBOR, on the first Day of the
Interest Period following the Interest Period that the
Lender receives the Covenant Compliance Certificate
and/or the financial statements reflecting such change
in the Borrower's Leverage Ratio; and provided, further,
however, if the Borrower shall fail to deliver any such
Covenant Compliance Certificate or financial statements
within the time period required pursuant to this
Agreement, then the Applicable Margin shall be at Level
I until the appropriate Covenant Compliance Certificate
or financial statements, as the case may be, are so
delivered. Notwithstanding the foregoing, the
Applicable Margin from the Closing Date until the date
that the financial statements and/or Covenant Compliance
Certificate for the fiscal quarter ending September 30,
2012 are required to be delivered to the Lender shall be
at Level III.
"Available Amount" means on the calculation date,
the maximum amount available to be drawn under any Letter
of Credit.
"Availability Period" shall mean the period from
the Closing Date to the Commitment Termination Date.
"Bank Products" shall mean any of the following
services provided to Borrower by Lender (or any Affiliate
of a Lender): (a) any treasury or other cash management
services, including deposit accounts, automated clearing
house (ACH) origination and other funds transfer,
depository (including cash vault and check deposit), zero
balance accounts and sweeps, return items processing,
controlled disbursement accounts, positive pay, lockboxes
and lockbox accounts, account reconciliation and
information reporting, payables outsourcing, payroll
processing, trade finance services, investment accounts
and securities accounts, (b) card services,
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including credit cards (including purchasing cards
and commercial cards), prepaid cards, including payroll,
stored value and gift cards, merchant services
processing, and debit card services and (c) Hedging
Agreements entered into with Lender (or an Affiliate
of Lender).
"Base Rate" shall mean at any time the Federal
Funds Rate plus 0.5% per annum.
"Base Rate Loan" when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, bears interest at a rate
determined by reference to the Base Rate.
"Borrower" shall have the meaning in the
introductory paragraph hereof.
"Borrowing" shall mean a borrowing consisting
of Loans of the same Type, made, converted or
continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period
is in effect.
"Business Day" shall mean (i) any day other than
a Saturday, Sunday or other day on which commercial
banks in Jacksonville, Florida are authorized or
required by law to close and (ii) if such day relates
to a Borrowing of, a payment or prepayment of principal
or interest on, a conversion of or into, or an Interest
Period for, a Eurodollar Loan or a notice with respect
to any of the foregoing, any day on which dealings in
Dollars are carried on in the London interbank market.
"Capital Expenditures" shall mean for any
period, without duplication, (i) the additions to
property, plant and equipment and other capital
expenditures of the Borrower and its Subsidiaries that
are (or would be) set forth on a consolidated statement
of cash flows of the Borrower for such period prepared
in accordance with GAAP and (ii) Capital Lease
Obligations incurred by the Borrower and its
Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall
mean all obligations of such Person to pay rent or
other amounts under any lease (or other arrangement
conveying the right to use) of real or personal
property, or a combination thereof, which obligations
are required to be classified and accounted for as
capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall
be the capitalized amount thereof determined in
accordance with GAAP.
"Change in Control" shall mean the occurrence
of one or more of the following events: (a) any sale,
lease, exchange or other transfer (in a single
transaction or a series of related transactions) of
all or substantially all of the assets of the
Borrower to any Person or "group" (within the
meaning of the Securities Exchange Act of 1934 and
the rules of the Securities and Exchange Commission
thereunder in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or "group"
(within the meaning of the Securities Exchange Act
of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof)
of thirty percent (30%) or more of the outstanding
shares of the voting stock of the Borrower; or (c)
occupation of a majority of the seats (other than
vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated
by the current board of directors or (ii) appointed
by directors so nominated.
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"Change in Law" shall mean (i) the adoption
of any applicable law, rule or regulation after
the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change
in the interpretation or application thereof, by
any Governmental Authority after the date of this
Agreement, or (iii) compliance by the Lender (or
for purposes of Section 2.17(b) or Section 2.24,
by the Lender's holding company, if applicable)
with any request, guideline or directive (whether
or not having the force of law) of any
Governmental Authority made or issued after the
date of this Agreement.
"Closing Date" shall mean December 21, 2012.
"Code" shall mean the Internal Revenue Code
of 1986, as amended and in effect from time to time.
"Commitment Termination Date" shall mean
the earliest of (i) December 31, 2017, (ii) the
date on which the Revolving Commitment is
terminated pursuant to Section 2.8 or (iii) the
date on which all amounts outstanding under this
Agreement have been declared or have
automatically become due and payable (whether
by acceleration or otherwise).
"Commitments" shall mean, collectively,
the Revolving Commitment and the Term
Commitment.
"Consolidated Current Maturities of
Long Term Debt" shall mean the portion of
Consolidated Long Term Debt of the Borrower
and its Subsidiaries, on a consolidated basis
determined in accordance with GAAP, paid during
the twelve (12) month period ending on the
last day of the month prior to the date as of
which said determination is to be made, but
excluding any amounts paid during such period
in respect of Consolidated Long Term Debt that
was not in default and which was voluntarily
prepaid by the Borrower and its Subsidiaries.
"Consolidated EBITDA" shall mean, for the
Borrower and its Subsidiaries for any
period, an amount equal to the sum of (a)
Consolidated Net Income for such period plus (b)
to the extent deducted in determining Consolidated
Net Income for such period, (i) Consolidated
Interest Expense, (ii) Consolidated Income Tax
Expense, and (iii) depreciation, depletion and
amortization determined on a consolidated basis
in accordance with GAAP in each case for such
period.
Consolidated Income Tax Expense" shall
mean, for the Borrower and its Subsidiaries for
any period determined on a consolidated basis in
accordance with GAAP, the aggregate of all
present or future taxes, levies, imposts, duties,
deductions, charges or withholdings paid in cash
to any Governmental Authority.
"Consolidated Interest Expense" shall mean,
for the Borrower and its Subsidiaries for any
period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total
cash interest expense, including without
limitation the interest component of any
payments in respect of Capital Leases
Obligations capitalized or expensed during
such period (whether or not actually paid
during such period) plus (ii) the net amount
payable (or minus the net amount receivable)
under Hedging Agreements during such period
(whether or not actually paid or received
during such period).
"Consolidated Long Term Debt" shall mean,
for any period, all Indebtedness of the
Borrower and its Subsidiaries, or any portion
thereof, determined on a consolidated basis and
in accordance with GAAP, the maturity of which
extends beyond twelve (12) months from the
date of calculation of Consolidated Long Term
Debt.
"Consolidated Net Income" shall mean,
for any period, the net income (or loss) of the
Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance
with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any
extraordinary gains or losses, (ii) any gains
attributable to write-ups of assets, (iii) any
equity interest of the Borrower or any
Subsidiary of the Borrower in the unremitted
earnings of any Person that is not a
Subsidiary and (iv) any income (or loss) of
any Person accrued prior to the
date it becomes a Subsidiary or is merged
into or consolidated with the Borrower or any
Subsidiary on the date that such Person's
assets are acquired by the Borrower or any
Subsidiary.
"Consolidated Net Worth" shall mean,
as of any date, the total assets of the Borrower
and its Subsidiaries that would be reflected
on the Borrower's consolidated balance sheet
as of such date prepared in accordance with
GAAP, after eliminating all amounts properly
attributable to minority interests, if any,
in the stock and surplus of Subsidiaries,
minus the sum of (i) the total liabilities of
the Borrower and its Subsidiaries that would
be reflected on the Borrower's consolidated
balance sheet as of such date prepared in
accordance with GAAP and (ii) the amount of
any write-up in the book value of any assets
resulting from a revaluation thereof or
any write-up in excess of the cost of such
assets acquired reflected on the consolidated
balance sheet of the Borrower as of such date
prepared in accordance with GAAP.
"Consolidated Total Capital" shall mean,
as of any date of determination with respect to
the Borrower, the sum of (i) Consolidated Total
Debt and (ii) Consolidated Net Worth.
"Consolidated Total Debt" shall mean,
as of any date of determination, all Indebtedness
of the Borrower and its Subsidiaries that would
be reflected on a consolidated balance sheet of
the Borrower prepared in accordance with GAAP as
of such date.
"Control" shall mean the power, directly
or indirectly, either to (i) vote five percent
(5%) or more of securities having ordinary
voting power for the election of directors (or
persons performing similar functions) of a
Person or (ii) direct or cause the direction
of the management and policies of a Person,
whether through the ability to exercise
voting power, by contract or otherwise. The
terms "Controlling," "Controlled by," and
"under common Control with" have
meanings correlative thereto.
"Covenant Compliance Certificate" shall
mean a certificate in such form as may be
acceptable to the Lender, containing all
the financial covenants and ratios with which the
Borrower is required to comply during the term of
this Agreement and containing calculations
reflecting whether or not the Borrower is in
compliance with each such financial covenant or
ratio.
"Daily One Month LIBOR" means for any day,
the rate of interest equal to LIBOR then in
effect for delivery for a one (1) month period.
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"Daily One Month LIBOR Loan" when used
in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising
such Borrowing, bears interest at a rate
determined by reference to Daily One Month LIBOR.
"Default" shall mean any condition or
event that, with the giving of notice or the lapse
of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning
set forth in Section 2.12(b).
"Dollar(s)" and the sign "$" shall mean
lawful money of the United States of America.
"Environmental Laws" shall mean all laws,
rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered
into by or with any Governmental Authority,
relating in any way to the environment,
preservation or reclamation of natural resources,
the management, Release or threatened Release
of any Hazardous Material or to health and
safety matters.
"Environmental Liability" shall mean any
liability, contingent or otherwise (including any
liability for damages, costs of environmental
investigation and remediation, costs of
administrative oversight, fines, natural resource
damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly
resulting from or based upon (a) any actual or
alleged violation of any Environmental Law, (b)
the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous
Materials, (c) any actual or alleged exposure to
any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials
or (e) any contract, agreement or other
consensual arrangement pursuant to which
liability is assumed or imposed with respect
to any of the foregoing.
"ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as
amended from time to time, and any successor
statute.
"ERISA Affiliate" shall mean any trade
or business (whether or not incorporated),
which, together with the Borrower, is treated
as a single employer under Section 414(b) or
(c) of the Code or, solely for the purposes
of Section 302 of ERISA and Section 412 of
the Code, is treated as a single employer
under Section 414 of the Code.
"ERISA Event" shall mean (a) any
"reportable event", as defined in Section
4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other
than an event for which the 30-day notice
period is waived); (b) the existence with r
espect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA
of an application for a waiver of the minimum
funding standard with respect to any Plan; (d)
the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title
IV of ERISA with respect to the termination
of any Plan; (e) the receipt by the
Borrower or any ERISA Affiliate from the
PBGC or a plan administrator appointed by
the PBGC of any notice relating to an
intention to terminate any Plan or Plans or
to appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability with
respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or
any ERISA Affiliate of any notice, or the
receipt by any
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Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is,
or is expected to be, insolvent or in
reorganization, within the meaning of
Title IV of ERISA.
"Eurodollar" when used in reference
to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such
Borrowing, bears interest at a rate
determined by reference to the LIBOR.
"Event of Default" shall have the
meaning provided in Article 8.
"Excluded Taxes" shall mean with
respect to the Lender or any other
recipient of any payment to be made by
or on account of any obligation of the
Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net
income by the United States of America, or
by the jurisdiction under the laws of which
such recipient is organized or in which its
principal office is located or, in the case
of the Lender, in which its applicable
lending office is located and (b) any branch
profits taxes imposed by the United States
of America or any similar tax imposed
by any other jurisdiction in which the
Borrower is located.
"Federal Funds Rate" shall mean, for
any day, the rate per annum (rounded upwards,
if necessary, to the next 1/8th of 1%)equal
to the weighted average of the rates on
overnight Federal funds transactions with
members of the Federal Reserve System
arranged by Federal funds brokers for the
immediately preceding day, as published by
the Federal Reserve Bank of New York;
provided that if no such rate is so published
on any day, then the Federal Funds Rate
for such day shall be the rate most
recently published.
"Fixed Charge Coverage Ratio" shall
mean, for any period of four consecutive fiscal
quarters of the Borrower, the ratio of (a)
Consolidated EBITDA for such period less
Consolidated Income Tax Expenses to (b) the
sum of Consolidated Interest Expense plus
Consolidated Current Maturities of Long Term
Debt for such period.
"GAAP" shall mean generally accepted
accounting principles in the United States
applied on a consistent basis and subject to
the terms of Section 1.3.
"Governmental Authority" shall mean
the government of the United States of America,
any other nation or any political subdivision
thereof, whether state or local, and any
agency, authority, instrumentality,
regulatory body, court, central bank or
other entity exercising executive,
legislative, judicial, taxing, regulatory or
administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the
"guarantor") shall mean any obligation,
contingent or otherwise, of the guarantor
guaranteeing or having the economic effect
of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary
obligor") in any manner, whether directly
or indirectly and including any obligation,
direct or indirect, of the guarantor (a)
to purchase or pay (or advance or supply
funds for the purchase or payment of) such
Indebtedness or other obligation or to
purchase (or to advance or supply funds
for the purchase of) any security for the
payment thereof, (b) to purchase or lease
property, securities or services
for the purpose of assuring the owner of
such Indebtedness or other obligation of
the payment thereof, (c) to maintain working
capital, equity capital or any other
financial statement
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condition or liquidity of the primary
obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation
or (d) as an account party in respect of any
letter of credit or letter of guaranty
issued in support of such Indebtedness or
obligation; provided, that the term "Guarantee"
shall not include endorsements for collection
or deposits in the ordinary course of business.
The amount of any Guarantee shall be deemed to
be an amount equal to the stated or determinable
amount of the primary obligation in respect of
which the Guarantee is made or, if not so stated
or determinable, the maximum reasonably
anticipated liability in respect thereof
(assuming such Person is required to perform
thereunder) as determined by such Person in
good faith. The term "Guarantee" used as a verb
has a corresponding meaning.
"Guarantors" shall mean FRTL, Inc.,
Florida Rock and Tank Lines, Inc., STI
Holdings, Inc., Florida Rock Properties, Inc.,
FRP Development Corp. and any future Subsidiary
which is required pursuant to Section 5.10 to
become a Guarantor.
"Hazardous Materials" means all explosive
or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other
substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreements" shall mean interest
rate swap, cap or collar agreements, interest
rate future or option contracts, currency
swap agreements, currency future or option
contracts, commodity agreements and other
similar agreements or arrangements designed
to protect against fluctuations in interest
rates, currency values or commodity values.
"Indebtedness" of any Person shall mean,
without duplication (i) all obligations of such
Person for borrowed money, (ii) all obligations
of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all
obligations of such Person in respect of the
deferred purchase price of property or services
(other than trade payables incurred in the
ordinary course of business; provided, that for
purposes of Section 8.1(f), trade payables
overdue by more than 120 days shall be included
in this definition except to the extent that
any of such trade payables are being disputed
in good faith and by appropriate measures),
(iv) all obligations of such Person under any
conditional sale or other title retention
agreement(s) relating to property acquired by
such Person, (v) all Capital Lease Obligations
of such Person, (vi) all obligations, contingent
or otherwise, of such Person in respect of
letters of credit, acceptances or similar
extensions of credit, (vii) all Guarantees of
such Person of the type of Indebtedness
described in clauses (i) through (vi) above,
(viii) all Indebtedness of a third party
secured by any Lien on property owned by such
Person, whether or not such Indebtedness has
been assumed by such Person, (ix) all
obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or
otherwise acquire for value any common stock
of such Person, and (x) Off-Balance Sheet
Liabilities. The Indebtedness of any Person
shall include the Indebtedness of any
partnership or joint venture in which such
Person is a general partner or a joint
venturer, except to the extent that the
terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes
other than Excluded Taxes.
<Page>
"Indemnity and Contribution Agreement"
shall mean the 2012 Indemnity, Subrogation
and Contribution Agreement, substantially
in the form of Exhibit D, among the Borrower,
the Subsidiary Loan Parties and the Lender.
"Interest Period" shall mean with
respect to any Eurodollar Borrowing, a period
of 30, 60, 90 or 180 days, as designated by
Borrower in accordance with the applicable
provisions of Article 2; provided, that:
(a) the initial Interest Period
for such Borrowing shall commence on the
date of such Borrowing (including the date
of any conversion from a Borrowing of another
Type) and each Interest Period occurring
thereafter in respect of such Borrowing shall
commence on the day on which the next
preceding Interest Period expires;
(b) if any Interest Period would
otherwise end on a day other than a Business
Day, such Interest Period shall be extended
to the next succeeding Business Day;
(c) any Interest Period in
respect of a Eurodollar Borrowing which begins
on the last Business Day of a calendar month
or 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 such calendar month; and
(d) no Interest Period may extend
beyond the Commitment Termination Date.
"Lender" shall have the meaning assigned
to such term in the opening paragraph of this
Agreement.
"Letter of Credit" shall mean any standby
letter of credit (or at the Lender's discretion,
any documentary letter of credit) issued by the
Lender pursuant to Section 2.22 hereof, as it may
be modified from time to time. The term "Letter
of Credit" shall not include any letters of credit
issued by the Lender other than pursuant to this
Agreement.
"Letter of Credit Documents" shall mean
such applications and other agreements as the
Lender may require in connection with the
issuance of a Letter of Credit, as they may be
modified from time to time.
"Letter of Credit Exposure" shall mean
the aggregate Available Amount of all
outstanding Letters of Credit as to which the
Lender is obligated to make Revolving Loan
advances pursuant to Section 2.23.
"Letter of Credit Notice" shall have
the meaning set forth in Section 2.23.
"Leverage Ratio" shall mean, as of
any date of determination with respect to the
Borrower, the ratio of (i) Consolidated
Total Debt as of such date to (ii)
Consolidated Total Capital as of such date.
"LIBOR" shall mean, for any applicable
Interest Period with respect to any Eurodollar
Loan, the rate per annum (rounded upward,
if necessary, to the nearest whole 1/8 of 1%)
and determined pursuant to the following
formula:
LIBOR = Base LIBOR
-------------------------------
100% - LIBOR Reserve Percentage
For purposes of the foregoing, (i)
"LIBOR Reserve Percentage" means the
reserve percentage prescribed by the Board
of Governors of the Federal Reserve System
(or any successor) for "Eurocurrency
Liabilities" (as defined in Regulation D of
the Federal Reserve Board, as amended),
adjusted by the Lender for expected changes
in such reserve percentage during the
applicable Interest Period; and (ii) "Base
LIBOR" means the rate per annum for United
States dollar deposits quoted by Lender (A)
for the purpose of calculating effective
rates of interest for Loans making
reference to LIBOR, as the Inter-Bank Market
Offered Rate, with the understanding that
such rate is quoted by Lender for the
purpose of calculating effective
rates of interest for Loans making
reference thereto, on the first day of
an Interest Period for delivery of funds
on said date for a period of time
approximately equal to the number of days
in such Interest Period and in an amount
approximately equal to the principal
amount to which such Interest Period
applies, or (B) for the purpose of
calculating effective rates of interest
for Loans making reference to the Daily
One Month LIBOR Rate, as the Inter-Bank
Market Offered Rate in effect from time
to time for delivery of funds for one
(1) month in amounts approximately
equal to the principal amount of such
Loans. Borrower understands and agrees
that Lender may base its quotation of the
Inter-Bank Market Offered Rate upon such
offers or other market indicators of the
Inter-Bank Market as Lender in its
discretion deems appropriate including,
but not limited to, the rate offered for
U.S. dollar deposits on the London Inter-
Bank Market.
"Lien" shall mean any mortgage,
pledge, security interest, lien (statutory
or otherwise), charge, encumbrance,
hypothecation, assignment, deposit
arrangement, or other arrangement having
the practical effect of the foregoing or
any preference, priority or other security
agreement or preferential arrangement of
any kind or nature whatsoever (including
any conditional sale or other title
retention agreement and any capital lease
having the same economic effect as any of
the foregoing).
"Loan Documents" shall mean,
collectively, this Agreement, the Revolving
Credit Note, the Term Notes, all Notices of
Borrowing, all Letter of Credit Notices,
all Letter of Credit Documents, the
Subsidiary Guarantee Agreement, the Indemnity
and Contribution Agreement, and any and all
other instruments, agreements, documents and
writings executed in connection with any of
the foregoing, as they may be modified from
time to time.
"Loan Parties" shall mean the Borrower
and the Subsidiary Loan Parties.
"Loans" shall mean Base Rate Loans,
Daily One Month LIBOR Loans, Eurodollar Loans
and/or LOC Loans, or any of them, as the
context shall require.
"LOC Fee Payment Date" shall mean the
last day of each March, June, September and
December and on the Commitment Termination
Date.
"LOC Loan" shall have the meaning
set forth in Section 2.23.
<Page>
"Material Adverse Effect" shall mean,
with respect to any event, act, condition or
occurrence of whatever nature (including any
adverse determination in any litigation,
arbitration, or governmental investigation
or proceeding), whether individually or in
conjunction with any other event or events,
act or acts, condition or conditions,
occurrence or occurrences whether or
not related, a material adverse change in,
or a material adverse effect on, (i) the
business, results of operations, financial
condition, assets, liabilities or prospects
of the Borrower and of the Borrower and its
Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties to perform any
of their respective obligations under the
Loan Documents, (iii) the rights and
remedies of the Lender under any of the
Loan Documents or (iv) the legality,
validity or enforceability of any of
the Loan Documents.
"Material Contract" shall mean (a)
any contract or other agreement, written
or oral, of the Borrower or any of its
Subsidiaries involving monetary liability
of or to any such Person in an amount in
excess of $1,000,000.00 in the aggregate
and (b) any other contract, agreement,
permit or license, written or oral, of the
Borrower or any of its Subsidiaries the
failure to comply with which could
reasonably be expected to have a Material
Adverse Effect.
"Material Indebtedness" shall mean
Indebtedness (other than the Loans) or
obligations in respect of one or more
Hedging Agreements, of any one or more
of the Borrower and the Subsidiaries in
an aggregate principal amount exceeding
$3,500,000.00. For purposes of
determining Material Indebtedness, the
"principal amount" of the obligations
of the Borrower or any Subsidiary in
respect to any Hedging Agreement at any
time shall be the maximum aggregate
amount (giving effect to any netting
agreements) that the Borrower or such
Subsidiary would be required to pay if
such Hedging Agreement were terminated
at such time.
"Material Subsidiary" shall mean
at any time any direct or indirect
Subsidiary of the Borrower having: (a)
assets in an amount equal to at least
five percent (5%) of the total assets of
the Borrower and its Subsidiaries
determined on a consolidated basis as
of the last day of the most recent fiscal
quarter of the Borrower at such time;
or (b) revenues or net income (losses) in
an amount equal to at least ten percent
(10%) of the total revenues or net income
(losses) of the Borrower and its
Subsidiaries on a consolidated basis
for the 12-month period ending on the
last day of the most recent fiscal quarter
of the Borrower at such time.
"Moody's" shall mean Moody's
Investors Service, Inc.
"Multiemployer Plan" shall have
the meaning set forth in Section 4001(a)
(3) of ERISA.
"Notices of Borrowing" shall mean
a Notice of Revolving Borrowing and/or a
Notice of Term Borrowing.
"Notice of Revolving Borrowing"
shall have the meaning set forth in Section
2.3.
"Notice of Term Borrowing" shall
have the meaning set forth in Section 2.5.
"Notice of Conversion/Continuation"
shall mean the notice given by the Borrower
to the Lender in respect of the conversion
or continuation of an outstanding Borrowing
as provided in Section 2.7(b) hereof.
<Page>
"Obligations" shall mean all amounts
owing by the Borrower to the Lender pursuant
to or in connection with this Agreement, any
other Loan Document or any Bank Products,
including without limitation, all principal,
interest (including any interest accruing
after the filing of any petition in
bankruptcy or the commencement of any
insolvency, reorganization or like proceeding
relating to the Borrower, whether or not a
claim for post-filing or post-petition
interest is allowed in such proceeding),
all reimbursement obligations under the
Letter of Credit Documents, fees,
expenses, indemnification and reimbursement
payments, costs and expenses (including all
reasonable fees and expenses of counsel to
the Lender incurred pursuant to this
Agreement or any other Loan Document),
whether direct or indirect, absolute or
contingent, liquidated or unliquidated,
now existing or hereafter arising
hereunder or thereunder, together with all
renewals, extensions, modifications or
refinancings thereof.
"Off-Balance Sheet Liabilities" of
any Person shall mean (i) any repurchase
obligation or liability of such Person
with respect to accounts or notes
receivable sold by such Person, (ii) any
liability of such Person under any sale
and leaseback transactions which do not
create a liability on the balance sheet
of such Person, (iii) any liability of
such Person under any so-called
"synthetic" lease transaction or (iv)
any obligation arising with respect to
any other transaction which is the
functional equivalent of or takes the
place of borrowing but which does not
constitute a liability on the balance
sheet of such Person.
"Other Taxes" shall mean any and
all present or future stamp or
documentary taxes or any other excise or
property taxes, charges or similar
levies arising from any payment made
hereunder or from the execution,
delivery or enforcement of, or otherwise
with respect to, this Agreement or any
other Loan Document.
"Participant" shall have the
meaning set forth in Section 10.4(b).
"Payment Office" shall mean the
office of the Lender located at One
Independent Drive, 25th Floor,
Jacksonville, Florida 32202, or such
other location as to which the Lender
shall have given written notice to
the Borrower.
"PBGC" shall mean the Pension
Benefit Guaranty Corporation referred
to and defined in ERISA, and any
successor entity performing similar
functions.
"Permitted Encumbrances" shall
mean
(a) Liens imposed by law
for taxes not yet delinquent or which
are being contested in good faith by
appropriate proceedings and with
respect to which adequate reserves
are being maintained in accordance
with GAAP;
(b) statutory Liens of
landlords and Liens of carriers,
warehousemen, mechanics, materialmen
and other Liens imposed by law
created in the ordinary course of
business for amounts not yet due or
which are being contested in good
faith by appropriate proceedings and
with respect to which adequate
reserves are being maintained in
accordance with GAAP;
(c) pledges and deposits
made in the ordinary course of business
in compliance with workers'
compensation, unemployment insurance
and other social security laws or
regulations;
<Page>
(d) deposits to secure
the performance of bids, trade
contracts, leases, statutory
obligations, surety and appeal bonds,
performance bonds and other
obligations of a like nature, in
each case in the ordinary course
of business;
(e) judgment and
attachment Liens not giving rise to
an Event of Default or Liens
created by or existing from any
litigation or legal proceeding that
are currently being contested in
good faith by appropriate proceedings
and with respect to which adequate
reserves are being
maintained in accordance with GAAP;
(f) easements, zoning
restrictions, rights-of-way and similar
encumbrances on real property imposed
by law or arising in the ordinary
course of business that do not secure
any monetary obligations and do not
materially detract from the value of
the affected property or materially
interfere with the ordinary conduct
of business of the Borrower and its
Subsidiaries taken as a whole; and
(g) Liens arising under
ERISA which could not reasonably be
expected to have a Material Adverse
Effect; provided, that the term
"Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Permitted Investments" shall
mean:
(a) direct obligations of,
or obligations the principal of and
interest on which are unconditionally
guaranteed by, the United States (or
by any agency thereof to the extent such
obligations are backed by the full faith
and credit of the United States), in
each case maturing within one year from
the date of acquisition thereof;
(b) commercial paper
having the highest rating, at the time
of acquisition thereof, of S&P or Moody's
and in either case maturing within six
months from the date of acquisition
thereof;
(c) certificates of deposit,
bankers' acceptances and time deposits
maturing within 180 days of the date of
acquisition thereof issued or guaranteed
by or placed with, and money market
deposit accounts issued or offered by,
any domestic office of any commercial
bank organized under the laws of the
United States or any state thereof
which has a combined capital and
surplus and undivided profits of not
less than $500,000,000.00;
(d) fully collateralized
repurchase agreements with a term of
not more than 30 days for securities
described in clause (i) above and
entered into with a financial
institution satisfying the criteria
described in clause (iii) above;
(e) investments in money
market mutual funds that are
registered with the SEC and
subject to Rule 2a-7 of the
Investment Company Act of 1940 and
have a net asset value of $1.00;
(f) municipal obligations
issued by any state of the United
States of America or any municipality
or other political subdivision of
any such state rated at least AAA by
S&P, Aaa by
<Page>
Moody's or AAA by Fitch
at the time of purchase; in each case
maturing within one year from
the date of acquisition thereof;
(g) fixed income mutual
funds that provide next day liquidity
and have a duration of one year or less;
and
(h) with respect to the
investments of captive loss funds,
investments in accordance with the
investment policy set forth on Annex I.
"Permitted Subordinated Debt"
shall mean any Indebtedness of the
Borrower or any Subsidiary (i) that is
expressly subordinated to the
Obligations on terms reasonably
satisfactory to the Lender, and (ii)
that is evidenced by an indenture or
other similar agreement that is in a
form reasonably satisfactory to the
Lender.
"Person" shall mean any
individual, partnership, firm,
corporation, association, joint
venture, limited liability company,
trust or other entity, or any
Governmental Authority.
"Plan" means any employee
pension benefit plan (other than a
Multiemployer Plan) subject to the
provisions of Title IV of ERISA or
Section 412 of the Code or Section
302 of ERISA, and in respect of
which the Borrower or any ERISA
Affiliate is (or, if such plan were
terminated, would under Section
4069 of ERISA be deemed to be) an
"employer" as defined in Section
3(5) of ERISA.
"Regulation D" shall mean
Regulation D of the Board of
Governors of the Federal Reserve
System, as the same may be in
effect from time to time, and any
successor regulations.
"Related Parties" shall mean,
with respect to any specified Person,
such Person's Affiliates and the
respective directors, officers,
employees, agents and advisors of
such Person and such Person's
Affiliates.
"Release" means any release,
spill, emission, leaking, dumping,
injection, pouring, deposit,
disposal, discharge, dispersal,
leaching or migration into the
environment (including ambient air,
surface water, groundwater, land
surface or subsurface strata) or
within any building, structure,
facility or fixture.
"Responsible Officer" shall
mean any of the president, the
chief executive officer, the
chief operating officer, the chief
financial officer, the treasurer or
a vice president of the
Borrower or such other representative
of the Borrower as may be designated
in writing by any one of the foregoing
with the consent of the Lender; and,
with respect to the financial covenants
only, the chief financial officer or
the treasurer of the Borrower.
"Restricted Payment" shall have
the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean
the obligation of the Lender to make
Revolving
Loans to or for the account of the
Borrower in an aggregate principal
amount not exceeding $40,000,000.
"Revolving Credit Exposure" shall
mean, at any time, the sum of the
outstanding principal amount of
Revolving Loan plus the Letter of
Credit Exposure.
"Revolving Credit Note" shall
mean a promissory note of the Borrower
payable to the order of the Lender
in the principal amount of the
Revolving Commitment, in substantially
the form of Exhibit A, as it may be
modified from time to time.
"Revolving Loan" shall mean a
loan made by the Lender to the Borrower
under its Revolving Commitment, which
may either be a Daily One Month LIBOR
Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SPE Subsidiary" shall mean a
special purpose Subsidiary of the
Borrower established solely for the
purpose of owning a parcel of real
property for permanent financing purposes.
"Subordinated Debt Documents" shall
mean any indenture, agreement or similar
instrument governing any Permitted
Subordinated Debt.
"Subsidiary" shall mean, with
respect to any Person (the "parent"),
any corporation, partnership, joint
venture, limited liability company,
association or other entity the accounts
of which would be consolidated with
those of the parent in the parent's
consolidated financial statements if
such financial statements were
prepared in accordance with GAAP as
of such date, as well as any other
corporation, partnership, joint
venture, limited liability company,
association or other entity (i) of
which securities or other ownership
interests representing more than 50% of
the equity or more than 50% of the
ordinary voting power, or in the case
of a partnership, more than 50% of the
general partnership interests are, as
of such date, owned, Controlled or held,
or (ii) that is, as of such date,
otherwise Controlled, by the parent or
one or more subsidiaries of the parent
or by the parent and one or more
subsidiaries of the parent. Unless
otherwise indicated, all references
to "Subsidiary" hereunder shall mean
a Subsidiary of the Borrower.
"Subsidiary Guarantee Agreement"
shall mean the Subsidiary Guarantee
Agreement, substantially in the form
of Exhibit C attached hereto, made
by the Subsidiary Loan Parties in
favor of the Lender.
"Subsidiary Loan Party" shall
mean any Subsidiary that is not a
Foreign Subsidiary or a SPE Subsidiary.
"Taxes" shall mean any and all
present or future taxes, levies,
imposts, duties, deductions,
charges or withholdings imposed by
any Governmental Authority.
"Term Commitment" shall mean the
obligation of the Lender to make Term
Loans to or for the account of the
Borrower in an aggregate principal
amount not exceeding $15,000,000.
"Term Note" shall mean a
promissory note of the Borrower
payable to the order of the Lender,
in substantially the form of Exhibit
B, as it may be modified from time
to time.
<Page>
"Term Loan" shall mean a loan
made by the Lender to the Borrower
under its Term Commitment, which may
either be a Daily One Month LIBOR
Loan or a Eurodollar Loan.
"Type," when used in reference
to a Loan or Borrowing, refers to
whether the rate of interest on such
Loan, or on the Loans comprising such
Borrowing, is determined by reference to
the LIBOR or the Base Rate.
"Withdrawal Liability" shall mean
liability to a Multiemployer Plan as a
result of a complete or partial withdrawal
from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle
E of Title IV of ERISA.
Section 1.2 Classifications
of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified
and referred to by Type (e.g. a "Eurodollar
Loan" or "Base Rate Loan" or "Daily One
Month LIBOR Loan"). Borrowings also may
be classified and referred to by Type
(e.g. "Eurodollar Borrowing").
Section 1.3 Accounting
Terms and Determination. Unless otherwise
defined or specified herein, all accounting
terms used herein shall be interpreted, all
accounting determinations hereunder shall
be made, and all financial statements
required to be delivered hereunder shall
be prepared, in accordance with GAAP as in
effect from time to time, applied on a basis
consistent (except for such changes approved
by the Borrower's independent public
accountants) with the most recent audited
consolidated financial statement of the
Borrower delivered pursuant to Section
5.1(a); provided, that if the Borrower
notifies the Lender that the Borrower wishes
to amend any covenant in Article 6 to
eliminate the effect of any change in
GAAP on the operation of such covenant
(or if the Lender notifies the Borrower
that the Lender wishes to amend Article 6
for such purpose), then the Borrower'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
Borrower and the Lender.
Section 1.4 Terms Generally.
The definitions of terms herein shall apply
equally to the singular and plural forms of
the terms defined. Whenever the context may
require, any pronoun shall include the
corresponding masculine, feminine and neuter
forms. The words "include", "includes" and
"including" shall be deemed to be followed
by the phrase "without limitation". The
word "will" shall be construed to have the
same meaning and effect as the word "shall".
In the computation of periods of time from
a specified date to a later specified date,
the word "from" means "from and including"
and the word "to" means "to but excluding".
Unless the context requires otherwise (i)
any definition of or reference to any
agreement, instrument or other document
herein shall be construed as referring to
such agreement, instrument or other
document as it was originally executed or
as it may from time to time be amended,
supplemented or otherwise modified
(subject to any restrictions on such
amendments, supplements or modifications
set forth herein), (ii) any reference
herein to any Person shall be construed to
include such Person's successors and
permitted assigns, (iii) the words "hereof",
"herein" and "hereunder" and words of
similar import shall be construed to refer
to this Agreement as a whole and not to any
particular provision hereof, (iv) all
references to Articles, Sections, Exhibits
and Schedules shall be construed to refer
to Articles, Sections, Exhibits and
Schedules to this
<Page>
Agreement and (v) all references to a
specific time shall be construed to refer
to the time in the city and state of the
Lender's principal office, unless
otherwise indicated.
ARTICLE 2
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1 General Description
of Facility. Subject to and upon the terms
and conditions herein set forth, (i) the
Lender hereby establishes in favor of the
Borrower a revolving credit facility pursuant
to which the Lender agrees (up to the
Revolving Commitment) to make Revolving
Loans to the Borrower in accordance with
Section 2.2, (ii) the Lender hereby establishes
in favor of the Borrower a term credit facility
pursuant to which the Lender agrees (up to the
Term Commitment) to make Term Loans to the
Borrower in accordance with Section
2.4, and (iii) the Lender agrees to issue
Letters of Credit in accordance with Section
2.22 hereof; provided, that in no event shall
the aggregate principal amount of all
outstanding Revolving Loans plus the
aggregate Available Amounts of all
outstanding Letters of Credit exceed at
any time the Revolving Commitment from
time to time in effect.
Section 2.2 Revolving Loans.
Subject to the terms and conditions set forth
herein, the Lender agrees to make Revolving
Loans to or for the account of the Borrower,
from time to time during the Availability
Period, in an aggregate principal amount
outstanding at any time that will not result
in the Lender's Revolving Credit Exposure
exceeding the Revolving Commitment. During
the Availability Period, the Borrower shall
be entitled to borrow, prepay and reborrow
Revolving Loans in accordance with the
terms and conditions of this Agreement;
provided, that the Borrower may not borrow
or reborrow should there exist a Default or
Event of Default.
Section 2.3 Procedure for
Revolving Loan Borrowings. The Borrower shall
give the Lender written notice (or telephonic
notice promptly confirmed in writing) of each
Revolving Loan Borrowing substantially in the
form of Exhibit 2.3 attached hereto (a "Notice
of Revolving Borrowing") (x) prior to 11:00
a.m. one (1) Business Day prior to the
requested date of each Daily One Month LIBOR
Borrowing, and (y) prior to 11:00 a.m. three
(3) Business Days prior to the requested date
of each Eurodollar Borrowing. Each Notice of
Revolving Borrowing shall be irrevocable and
shall specify: (i) the aggregate principal
amount of such Borrowing, (ii) the date of
such Borrowing (which shall be a Business
Day), (iii) the Type of such Loan
comprising such Borrowing, and (iv) in the
case of a Eurodollar Borrowing, the duration
of the initial Interest Period applicable
thereto (subject to the provisions of the
definition of Interest Period). Each
Revolving Loan Borrowing shall consist
entirely of Daily One Month LIBOR Loans
or Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of
each Eurodollar Borrowing and each Daily
One Month LIBOR Borrowing shall be not less
than $100,000.00 or a larger multiple of
$50,000.00. At no time shall the total
number of outstanding Revolving Loan
Borrowings which consist of Eurodollar
Borrowings exceed seven (7). If
Borrower subscribes to Bank's cash
management services and such services
are applicable to the Revolving Loans,
the terms of such service shall control
the manner in which funds are transferred
between the applicable demand deposit
account and the Revolving Loan for
credit or debit to the Revolving Loan.
<Page>
Section 2.4 Term Loan
Commitment.. Subject to the terms and
conditions set forth herein, the Lender
agrees to make Term Loans to the Borrower,
from time to time from the Closing Date
to the Commitment Termination Date, in
an aggregate principal amount outstanding
at any time not to exceed the Term
Commitment. Each Term Loan shall be in a
principal amount of not less than
$1,000,000 or a larger multiple of
$500,000. The Borrower shall be entitled
to borrow, repay and reborrow Term Loans
in accordance with the terms and conditions
of this Agreement, provided that in no
event shall the aggregate principal amount
of all outstanding Term Loans exceed at
any time the Term Commitment.
Section 2.5 Procedure for Term
Borrowing.. The Borrower shall give the
Lender written notice (or telephonic
notice promptly confirmed in writing) of
each Term Loan substantially in the form
of Exhibit 2.5 attached hereto (a
"Notice of Term Borrowing") (x) prior
to 11:00 a.m. one (1) Business Day
prior to the requested date of each Daily
One Month LIBOR Borrowing, and (y) prior
to 11:00 a.m. three (3) Business Days
prior to the requested date of each
Eurodollar Borrowing. Each Notice of
Term Borrowing shall be irrevocable and
shall specify: (i) the aggregate
principal amount of such Borrowing,
(ii) the date of such Borrowing (which
shall be a Business Day), (iii) the
Type of Loan comprising such Borrowing
and (iv) in the case of a Eurodollar
Borrowing, the duration of the initial
Interest Period applicable thereto
(subject to the provisions of the
definition of Interest Period). Each
Term Loan Borrowing shall consist entirely
of Daily One Month LIBOR Loans or
Eurodollar Loans, as the Borrower may
request. The aggregate principal amount
of each Eurodollar Borrowing and each
Daily One Month LIBOR Borrowing shall
be not less than $100,000.00 or a
larger multiple of $50,000.00. At
no time shall the total number of
outstanding Term Loan Borrowings
which consist of Eurodollar Borrowings
exceed three (3).
Section 2.6 Funding of
Borrowings. The Lender will make
available each Loan to be made by it
hereunder on the proposed date thereof
by crediting the amount of such Loan,
in immediately available funds, by the
close of business on such proposed date,
to an account maintained by the
Borrower with the Lender or at the
Borrower's option, by effecting a
wire transfer of such amounts to an
account designated by the Borrower to
the Lender.
Section 2.7 Interest Elections.
(a) Each Borrowing initially
shall be of the Type specified in the
applicable Notice of Borrowing, and in the
case of a Eurodollar Borrowing, shall
have an initial Interest Period as
specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert
such Borrowing into a different Type or to
continue such Borrowing, and in the case
of a Eurodollar Borrowing, may elect
Interest Periods therefor, all as provided
in this Section. The Borrower may elect
different options with respect to different
portions of the affected Borrowing, and the
Loans comprising each such portion shall be
considered a separate Borrowing.
(b) To make an election pursuant
to this Section, the Borrower shall give the
Lender prior written notice (or telephonic
notice promptly confirmed in writing) of each
Borrowing (a "Notice of Conversion/
Continuation") that is to be converted or
continued, as the case may be, (x) prior to
10:00 a.m. one (1) Business Day prior to the
requested date of a conversion into a Daily
One Month LIBOR Borrowing, and (y) prior to
11:00 a.m. three (3)
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Business Days prior to a continuation of
or conversion into a Eurodollar Borrowing.
Each such Notice of Conversion/Continuation
shall be irrevocable and shall specify (i)
the Borrowing to which such Notice of
Continuation/Conversion applies and if
different options are being elected
with respect to different portions thereof,
the portions thereof that are to be
allocated to each resulting Borrowing (in
which case the information to be specified
pursuant to clauses (iii) and (iv) shall
be specified for each resulting Borrowing);
(ii) the effective date of the election made
pursuant to such Notice of Continuation/
Conversion, which shall be a Business Day,
(iii) whether the resulting Borrowing is
to be a Daily One Month LIBOR Borrowing or
a Eurodollar Borrowing; and (iv) if the
resulting Borrowing is to be a Eurodollar
Borrowing, the Interest Period applicable
thereto after giving effect to such
election, which shall be a period contemplated
by the definition of "Interest Period." If
any such Notice of Continuation/Conversion
requests a Eurodollar Borrowing but does not
specify an Interest Period, the Borrower shall
be deemed to have selected an Interest Period
of one month. The principal amount of any
resulting Borrowing shall satisfy the minimum
borrowing amount for Eurodollar Borrowings
and Daily One Month LIBOR Borrowings set
forth in Section 2.3 and Section 2.5, as
applicable.
(c) If, on the expiration of
any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall
have failed to deliver a Notice of
Conversion/Continuation, then,
unless such Borrowing is repaid as
provided herein, the Borrower shall be
deemed to have elected to convert such
Borrowing to a Daily One Month LIBOR
Borrowing. No Borrowing may be converted
into, or continued as, a Eurodollar Borrowing
if a Default or an Event of Default exists,
unless the Lender shall have otherwise
consented in writing. No conversion of
any Eurodollar Loans shall be permitted
except on the last day of the Interest
Period in respect thereof. Any Borrowing
for which the Borrower has not made an
election, including Borrowings made on
the Borrower's behalf pursuant to Section
2.23(b), shall be a Daily One Month LIBOR
Borrowing.
Section 2.8 Optional Reduction
and Termination of Commitments.
(a) Unless previously terminated,
the Revolving Commitment and the Term
Commitment shall terminate on the Commitment
Termination Date.
(b) Upon at least three (3)
Business Days prior written notice (or
telephonic notice promptly confirmed in
writing) to the Lender (which notice shall
be irrevocable), the Borrower may reduce
the Revolving Commitment in part or terminate
the Revolving Commitment in whole; provided,
that (i) any partial reduction pursuant to this
Section 2.8 shall be in an amount of at least
$1,000,000.00 and any larger multiple of
$500,000.00, and (ii) no such reduction shall
be permitted which would reduce the Revolving
Commitment to an amount less than the
outstanding Revolving Credit Exposure of
the Lender.
Section 2.9 Repayment of Loans.
The outstanding principal amount of all
Revolving Loans and all Term Loan shall
be due and payable (together with accrued and
unpaid interest thereon) on the Commitment
Termination Date.
Section 2.10 Evidence of
Indebtedness.
<Page>
(a) The Lender shall maintain
in accordance with its usual practice
appropriate records evidencing the
indebtedness of the Borrower to the Lender
resulting from each Loan made by the Lender
from time to time, including (i) the amounts
of principal and interest payable thereon
and paid to the Lender from time to time
under this Agreement, (ii) the Revolving
Commitment of the Lender, (iii) the amount
of each Loan made hereunder by the Lender,
the Type thereof and the Interest Period
applicable thereto, (iv) the date of each
continuation thereof pursuant to Section
2.7, (v) the date of each conversion of
all or a portion thereof to another Type
pursuant to Section 2.7, (vi) the date
and amount of any principal or interest
due and payable or to become due and
payable from the Borrower to the Lender
hereunder in respect of such Loans,
(vii) the date, stated amount, Available
Amount and expiration or termination of each
outstanding Letter of Credit, and (viii)
both the date and amount of any sum
received by the Lender hereunder from the
Borrower in respect of the Loans. The
entries made in such records shall be
prima facie evidence of the existence
and amounts of the obligations of the
Borrower therein recorded; provided,
that the failure or delay of the Lender
in maintaining or making entries into
any such record or any error therein
shall not in any manner affect the
obligation of the Borrower to repay the
Loans (both principal and unpaid
accrued interest) in accordance with
the terms of this Agreement.
(b) The Borrower agrees
that it will execute and deliver to
the Lender a Revolving Credit Note,
payable to the order of the Lender.
Prior to the funding of each Term
Loan, the Borrower agrees to execute
and deliver to the Lender a Term Note
evidencing each Term Loan Borrowing,
payable to the order of the Lender.
Section 2.11 Optional
Prepayments. The Borrower shall have
the right at any time and from time
to time to prepay any Borrowing, in
whole or in part, without premium or
penalty, by giving irrevocable written
notice (or telephonic notice promptly
confirmed in writing) to the Lender
no later than (i) in the case of
prepayment of any Eurodollar
Borrowing, 11:00 a.m. not less than
three (3) Business Days prior to any
such prepayment and (ii) in the case
of any prepayment of any Daily One
Month LIBOR Borrowing, not less than
one (1) Business Day prior to the
date of such prepayment; provided,
however, that any prepayment of
Eurodollar Borrowings shall be in a
minimum amount of $1,000,000.00 and
any larger multiple of $500,000.00
and any prepayment of Daily One Month
LIBOR Borrowings shall be in a
minimum amount of $500,000.00 and
larger multiples of $100,000.00.
Each such notice shall be irrevocable
and shall specify the proposed date
of such prepayment and the principal
amount of each Borrowing or portion
thereof to be prepaid. If such notice
is given, the aggregate amount specified
in such notice shall be due and payable
on the date designated in such notice,
together with accrued interest to such
date on the amount so prepaid in
accordance with Section 2.12(c);
provided, that if a Eurodollar Borrowing
is prepaid on a date other than the last
day of an Interest Period applicable
thereto, the Borrower shall also pay
all amounts required pursuant to
Section 2.18. Each partial prepayment
of any Loan shall be in an amount that
would be permitted in the case of an
advance of a Revolving Borrowing of the
same Type pursuant to Section 2.3. Each
prepayment of a Borrowing shall be applied
ratably to the Loans comprising such
Borrowing.
Section 2.12 Interest on Loans.
(a) The Borrower shall pay
interest (i) on each Daily One Month LIBOR
Loan at the Daily One Month LIBOR rate in
effect from time to time, plus the Applicable
Margin in effect from time to time, and
(ii) on each Eurodollar Loan at LIBOR for
the applicable Interest Period in effect
for such Loan, plus the Applicable
<Page>
Margin in effect from time to time. In the
event that any Loans shall from time to
time be Base Rate Loans, the Borrower shall
pay interest on each Base Rate Loan at the
Base Rate in effect from time to time, plus
the Applicable Margin in effect from time
to time.
(b) While an Event of Default
exists or after acceleration, at the
option of the Lender, the Borrower shall
pay interest ("Default Interest") with
respect to all Eurodollar Loans
at the rate otherwise applicable for
the then-current Interest Period plus
an additional 2% per annum until the
last day of such Interest Period, and
thereafter, and with respect to all Base
Rate Loans, all Daily One Month LIBOR
Loans, and all other Obligations
hereunder (other than Loans), at an
all-in rate in effect for Base Rate
Loans, plus an additional 2% per annum.
(c) Interest on the principal
amount of all Loans shall accrue from and
including the date such Loans are made to
but excluding the date of any repayment
thereof. Interest on all outstanding Daily
One Month LIBOR Loans and Base Rate Loans
shall be payable quarterly in arrears on
the last day of each March, June, September
and December and on the Commitment
Termination Date. Interest on all
outstanding Eurodollar Loans shall be
payable on the last day of each Interest
Period applicable thereto, and, in the
case of any Eurodollar Loans having an
Interest Period in excess of 90 days,
on each day which occurs every 90 days
after the initial date of such Interest
Period, and on the Commitment Termination
Date. Interest on any Loan which is
converted into a Loan of another Type or
which is repaid or prepaid shall be
payable on the date of such conversion or
on the date of any such repayment or
prepayment (on the amount repaid or
prepaid) thereof. All Default Interest
shall be payable on demand.
(d) The Lender shall determine
each interest rate applicable to the Loans
hereunder and shall promptly notify the
Borrower of such rate in writing (or by
telephone, promptly confirmed in writing).
Any such determination shall be conclusive
and binding for all purposes, absent
manifest error.
Section 2.13 Fees.
(a) Intentionally omitted.
(b) Commitment Fee. The
Borrower agrees to pay to the Lender a
commitment fee, which shall accrue at
the Applicable Margin (determined daily) on
the daily amount of the unused Revolving
Loan portion of the Revolving Commitment
of the Lender during the Availability
Period; provided, that if the Lender
continues to have any Revolving
Credit Exposure after the Commitment
Termination Date, then the commitment
fee shall continue to accrue on the
amount of the Lender's unused Revolving
Loan portion of the Revolving Commitment
from and after the Commitment Termination
Date to the date that all of
the Lender's Revolving Credit Exposure
has been paid in full. Accrued commitment
fees shall be payable quarterly, in arrears
on the last day of each March, June,
September and December of each year and on
the Commitment Termination Date, commencing
on the first such date after the Closing
Date; provided further, that any commitment
fees accruing after the Commitment
Termination Date shall be payable on demand.
For purposes of computing commitment fees
<Page>
with respect to the Revolving Commitment,
the Revolving Commitment shall be deemed
used to the extent of the outstanding
Revolving Loans.
(c) Upfront Fee. The Borrower
shall pay to the Lender a one-time upfront
fee equal to $41,250. The upfront fee
shall be due and payable on the Closing Date.
(d) Letter of Credit Fee. On
each LOC Fee Payment Date, the Borrower
shall pay, in arrears, to the Lender, a
Letter of Credit fee for each Letter of
Credit equal to (i) the average daily
outstanding Available Amount of such
Letter of Credit since the most recent
LOC Fee Payment Date (or the date of
issuance if later) times (ii) the
Applicable Margin for LIBOR on a per
annum basis. In addition to the
foregoing Letter of Credit fees, the
Lender may charge for its own account,
fees for drawings, transfers, amendments
and other fees and charges as may
be required under the Letter of Credit
Documents.
Section 2.14 Computation of
Interest and Fees. All computations of
interest and fees hereunder shall be
made on the basis of a year of 360 days
for the actual number of days (including
the first day but excluding the last
day) occurring in the period for which
such interest or fees are payable (to
the extent computed on the basis of
days elapsed) except that Letter of
Credit Fees shall be calculated in
accordance with the Letter of Credit
Documents. Each determination by the
Lender of an interest amount or fee
hereunder shall be made in good faith
and, except for manifest error, shall
be final, conclusive and binding for
all purposes.
Section 2.15 Inability to
Determine Interest Rates. If prior to
the commencement of any Interest Period
for any Eurodollar Borrowing,
(a) the Lender shall have
determined (which determination shall
be conclusive and binding upon the
Borrower) that, by reason of
circumstances affecting the relevant
interbank market, adequate means do
not exist for ascertaining LIBOR for
such Interest Period, or
(b) the Lender shall have
determined that the LIBOR does not
adequately and fairly reflect the cost
to the Lender of making, funding or
maintaining the Eurodollar Loans
for such Interest Period, the Lender
shall give written notice (or telephonic
notice, promptly confirmed in writing)
to the Borrower as soon as practicable
thereafter. In the case of Eurodollar
Loans and Daily One Month LIBOR Loans,
until the Lender shall notify the
Borrower that the circumstances giving
rise to such notice no longer exist, (i)
the obligations of the Lender to make
Eurodollar Loans or Daily One Month LIBOR
Loans or to continue or convert outstanding
Loans as or into Eurodollar Loans or Daily
One Month LIBOR Loans shall be suspended
and (ii) all such affected Daily One Month
LIBOR Loans shall be immediately converted
into Base Rate Loans and all such affect
Eurodollar Loans shall be converted into
Base Rate Loans on the last day of the
then current Interest Period applicable
thereto unless the Borrower prepays such
Loans in accordance with this Agreement.
Unless the Borrower notifies the Lender
at least one (1) Business Day before the
date of any Eurodollar Revolving
Borrowing for which a Notice of Revolving
Borrowing has previously been given that
it elects not to borrow on such date, then
such Revolving Borrowing shall be made as
a Base Rate Borrowing.
<Page>
Section 2.16 Illegality. If
any Change in Law shall make it unlawful or
impossible for the Lender to make, maintain
or fund any Eurodollar Loan, the Lender
shall promptly give notice thereof to the
Borrower, whereupon until the Lender
notifies the Borrower that the
circumstances giving rise to such suspension
no longer exist, the obligation of the Lender
to make Eurodollar Loans or Daily One Month
LIBOR Loans, or to continue or convert
outstanding Loans as or into Eurodollar
Loans or Daily One Month LIBOR Loans,
shall be suspended. In the case of the
making of a Eurodollar Borrowing, such
Eurodollar Borrowing shall be made as a
Base Rate Loan as part of the same
Borrowing for the same Interest Period
and if the affected Eurodollar Loan is
then outstanding, such Loan shall be
converted to a Base Rate Loan either
(i) on the last day of the then current
Interest Period applicable to such
Eurodollar Loan if the Lender may
lawfully continue to maintain such
Loan to such date or (ii) immediately
if the Lender shall determine that it
may not lawfully continue to maintain
such Eurodollar Loan to such date.
Requests for Base Rate Borrowings shall
be made prior to 11:00 a.m. one (1)
Business Day prior to the requested
date of each Base Rate Borrowing.
Section 2.17 Increased Costs.
(a) If any Change in Law
shall:
(i) impose, modify
or deem applicable any reserve, special
deposit, capital adequacy or similar
requirement that is not otherwise included
in the determination of LIBOR hereunder
against assets of, deposits with or for
the account of, or credit extended by,
the Lender; or
(ii) impose on the
Lender or the Eurodollar interbank
market any other condition affecting
this Agreement or any Eurodollar Loans
made by the Lender; and the result of
the foregoing is to increase the cost to
the Lender of making, converting into,
continuing or maintaining a Eurodollar
Loan or to reduce the amount received or
receivable by the Lender hereunder
(whether of principal, interest or any
other amount), then the Borrower
shall promptly pay, upon written notice
from and demand by the Lender on the
Borrower, to the Lender, within five
(5) Business Days after the date of
such notice and demand, additional
amount or amounts sufficient to
compensate the Lender for such additional
costs incurred or reduction suffered.
(b) If the Lender shall have
determined that on or after the date of
this Agreement any Change in Law regarding
capital requirements has or would have the
effect of reducing the rate of return on
the Lender's capital (or on the capital
of the Lender's parent corporation) as a
consequence of its obligations hereunder
to a level below that which the Lender
or the Lender's parent corporation could
have achieved but for such Change in Law
(taking into consideration the Lender's
policies or the policies of the Lender's
parent corporation with respect to capital
adequacy) then, from time to time, within
five (5) Business Days after receipt by the
Borrower of written demand by the Lender,
the Borrower shall pay to the Lender such
additional amounts as will compensate the
Lender or the Lender's parent corporation
for any such reduction suffered.
<Page>
(c) A certificate of the
Lender setting forth the amount or
amounts necessary to compensate the Lender
or the Lender's parent corporation, as the
case may be, specified in paragraph (a) or
(b) of this Section shall be delivered to
the Borrower and shall be conclusive,
absent manifest error. The Borrower shall
pay any the Lender such amount or amounts
within 10 days after receipt thereof.
(d) Failure or delay on the
part of the Lender to demand compensation
pursuant to this Section shall not
constitute a waiver of the Lender's
right to demand such compensation.
Section 2.18 Funding Indemnity.
In the event of (a) the payment of any
principal of a Eurodollar Loan other than
on the last day of the Interest Period
applicable thereto (including as a result
of an Event of Default), (b) the
conversion or continuation of a
Eurodollar Loan other than on the last
day of the Interest Period applicable
thereto or (c) the failure by the
Borrower to borrow, prepay, convert or
continue any Eurodollar Loan on the date
specified in any applicable notice
(regardless of whether such notice is
withdrawn or revoked), in any such
event, the Borrower shall compensate
the Lender, within five (5) Business
Days after written demand from the
Lender, for any loss, cost or expense
attributable to such event. In the case
of a Eurodollar Loan, such loss, cost or
expense shall be deemed to include an
amount determined by the Lender to be the
excess, if any, of (A) the amount of
interest that would have accrued on the
principal amount of such Eurodollar Loan
if such event had not occurred at LIBOR
applicable to such Eurodollar Loan for the
period from the date of such event to the
last day of the then current Interest
Period therefor (or in the case of a
failure to borrow, convert or continue,
for the period that would have been the
Interest Period for such Eurodollar Loan)
over (B) the amount of interest that would
accrue on the principal amount of such
Eurodollar Loan for the same period if
LIBOR were set on the date such Eurodollar
Loan was prepaid or converted or the date
on which the Borrower failed to borrow,
convert or continue such Eurodollar Loan.
A certificate as to any additional
amount payable under this Section 2.18
submitted to the Borrower by the Lender
shall be conclusive, absent manifest error.
Section 2.19 Taxes.
(a) Any and all payments by or
on account of any obligation of the Borrower
hereunder shall be made free and clear of
and without deduction for any Indemnified
Taxes or Other Taxes; provided, that if the
Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall
be increased as necessary so that after
making all required deductions (including
deductions applicable to additional sums
payable under this Section) the Lender
shall receive an amount equal to the sum
it would have received had no such
deductions been made, (ii) the Borrower
shall make such deductions, and (iii) the
Borrower shall pay the full amount
deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower
shall pay any Other Taxes to the relevant
Governmental Authority in accordance with
applicable law.
(c) The Borrower shall indemnify
the Lender, within five (5) Business Days
after written demand therefor, for the full
amount of any Indemnified Taxes or Other
Taxes paid
<Page>
by the Lender on or with respect to any
payment by or on account of any obligation
of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed
or asserted on or attributable to amounts
payable under this Section) and any
penalties, interest and reasonable
expenses arising therefrom or with
respect thereto, whether or not such
Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted
by the relevant Governmental Authority.
A certificate as to the amount of such
payment or liability delivered to the
Borrower by the Lender shall be
conclusive absent manifest error.
(d) As soon as practicable
after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a
Governmental Authority, the Borrower
shall deliver to the Lender the original
or a certified copy of a receipt issued
by such Governmental Authority evidencing
such payment, a copy of the return
reporting such payment or other evidence
of such payment reasonably satisfactory
to the Lender.
Section 2.20 Payments Generally.
(a) The Borrower shall make
each payment required to be made by it
hereunder (whether of principal, interest,
fees, or of amounts payable under Section
2.17, Section 2.18 or Section 2.19, or
otherwise) prior to 11:00 a.m.,
Jacksonville, Florida time, on the
date when due, in immediately available
funds, without set-off or counterclaim.
Any amounts received after such time on
any date may, in the discretion of the
Lender, be deemed to have been received
on the next succeeding Business Day for
purposes of calculating interest thereon.
All such payments shall be made to the
Lender at the Payment Office. If any
payment hereunder shall be due on a day
that is not a Business Day, the date
for payment shall be extended to the
next succeeding Business Day, and, in
the case of any payment accruing
interest, interest thereon shall be
made payable for the period of such
extension. All payments hereunder
shall be made in Dollars.
(b) If at any time
insufficient funds are received by
and available to the Lender to pay
fully all amounts of principal,
interest and fees then due hereunder,
such funds shall be applied (i) first,
towards payment of interest and fees
then due hereunder, ratably among
the parties entitled thereto in
accordance with the amounts of
interest and fees then due to such
parties, and (ii) second, towards
payment of principal then due
hereunder, ratably among the
parties entitled thereto in accordance
with the amounts of principal then
due to such parties.
Section 2.21 Mitigation of
Obligations. If the Lender requests
compensation under Section 2.17, or
if the Borrower is required to pay
any additional amount to the Lender
or any Governmental Authority for the
account of the Lender pursuant to
Section 2.19, then the Lender shall
use reasonable efforts to designate
a different lending office for
funding or booking its Loans hereunder
or to assign its rights and obligations
hereunder to another of its offices,
branches or affiliates, if, in the
sole judgment of the Lender, such
designation or assignment (i)
would eliminate or reduce amounts
payable under Section 2.17 or
Section 2.19, as the case may
be, in the future and (ii) would
not subject the Lender to any
unreimbursed cost or expense and
would not otherwise be disadvantageous
to the Lender. The Borrower hereby
agrees to pay all costs and expenses
incurred by the Lender in connection
with such designation or assignment.
<Page>
Section 2.22 Letter of
Credit Commitment. Subject to the
terms and conditions set forth herein
and provided no Default exists, the
Lender agrees to issue Letters of
Credit from time to time during the
Availability Period; provided,
however, that (a) no Letter of
Credit shall have a stated
expiration date later than five (5)
Business Days prior to the
Commitment Termination Date, as it
may be extended, (b) the aggregate
Available Amount of all
Letters of Credit outstanding at any
time shall not exceed the lesser of
(i) $20,000,000 and (ii)
the difference between the Revolving
Commitment and the Revolving Credit
Exposures of the Lender.
Section 2.23 Procedure
for Issuance and Reimbursement of
Letters of Credit.
(a) The Borrower shall
give the Lender a written request
for the issuance of a Letter of
Credit (a "Letter of Credit
Notice"), and shall provide to
the Lender such Letter of
Credit Documents as it may require.
(b) Should there occur
any drawing under a Letter of Credit,
such drawing shall constitute a
Notice of Revolving Borrowing from
the Borrower (which the Borrower
hereby irrevocably authorizes)
requesting the Lender to make a
Revolving Loan on the date of such
drawing in an amount equal to the
amount of such drawing. The
proceeds of such Revolving
Loan, to be funded in accordance
with Section 2.6, shall be used
exclusively for the reimbursement
of such drawing.
(c) If for any reason,
a Revolving Loan may not be (as
determined in the sole discretion
of the Lender) or is not, made in
accordance with the provisions of
Subsection (b) above, then the
Lender shall be considered to have
made a loan (the "LOC Loan") to the
Borrower in the amount of such
drawing. The LOC Loan shall be
payable on demand, shall be a
Base Rate Loan, and shall be an
Obligation hereunder.
Section 2.24 Increased
Cost.
(a) If a Change of Law
or compliance by the Lender with
any request or directive (whether
or not having the force of law) of
any Governmental Authority either:
(i) shall subject the Lender to
any tax, duty or other charge with
respect to any Letter of Credit or
its obligations hereunder or under
any Letter of Credit Documents, or
(ii) shall impose, modify or
deem applicable any reserve,
special deposit insurance or similar
requirement (including, without
limitation, any such requirements
imposed by the Board of Governors
of the Federal Reserve System)
against assets of, deposits with
or for the account of, or credit
extended by, the Lender
or its parent; or (iii) shall
impose on the Lender or its parent
any other similar condition relating
to the Letter of Credit or its
obligations hereunder or under any
Letter of Credit Documents; and
the result of any of the foregoing
is to increase the cost to the Lender
or its parent of making or
maintaining the Letter of Credit or
its obligations hereunder or under
any Letter of Credit Documents, or
to reduce the amount received or
receivable by the Lender or its
parent under this Agreement, under
the Letter of Credit or hereunder
or under the other Loan Documents
with respect thereto, by an amount
deemed by the Lender to be
material, the Lender shall notify
the Borrower in writing describing
such circumstances and the amount
needed to compensate the Lender or
its parent. Within ten (10) days
after demand by the Lender,
Borrower shall pay to the
<Page>
Lender such additional amount or
amounts as will compensate the
Lender or its parent for such
increased cost or reduction.
(b) If the Lender
shall have determined that a
Change of Law or compliance
by the Lender with any request or
directive regarding capital
adequacy (whether or not having
the force of law) of any Authority,
has or would have the effect of
reducing the rate of return on
the Lender's (or its parent's)
capital as a consequence of the
issuance or continuance of any
Letter of Credit or its ability
to make Loans or LOC Loans upon
the occurrence of draws under
any Letter of Credit (taking into
consideration the Lender's (or its
parent's) policies with respect
to capital adequacy), by an amount
deemed by the Lender to be material,
then from time to time, the Lender
shall notify the Borrower in
writing describing such
circumstances and the amount
needed to compensate the Lender
or its parent. Within ten (10)
days after demand by the
Lender, Borrower shall pay to
the Lender such additional
amount or amounts as will
compensate the Lender (or its
parent's) for such reduction.
(c) In determining
amounts owing pursuant to
Subsections (a) and (b), the
Lender may use any reasonable
averaging, allocation and
attribution methods.
Section 2.25 Obligations
Absolute. The obligations of
Borrower under the Letter of Credit
Documents and this Agreement with
respect to reimbursement for drawings
under Letters of Credit shall be
absolute, unconditional and
irrevocable, and shall be paid
strictly in accordance with the
terms of this Agreement and the
Letter of Credit Documents,
under all circumstances
whatsoever, including, without
limitation, the following
circumstances:
(a) any lack of
validity or enforceability of
the Letter of Credit, any of the
Loan Documents or any other
agreement or instrument related
thereto;
(b) any amendment
or waiver of or any consent to
departure from the terms of
the Letter of Credit, any of
the Loan Documents or any other
agreement or instrument related
thereto;
(c) the existence
of any claim, setoff, defense
or other right which Borrower
may have at any time against
the Lender, any beneficiary or
any transferee of the Letter
of Credit (or any Person for
whom the Lender, any such
beneficiary or any such
transferee may be acting),
or any other Person, whether
in connection with this
Agreement, the Loan Documents,
the Letter of Credit, or any
unrelated transaction;
(d) any statement,
draft or other document presented
under the Letter of Credit
proving to be forged, fraudulent,
invalid or insufficient in any
respect, or any statement
therein being untrue or
inaccurate in any respect
whatsoever; or
(e) the surrender
or impairment of any security
for the performance or
observance of any of the terms
of this Agreement, or any of the
other Loan Documents.
Section 2.26 Letter
of Credit Documents. The
obligations of the Borrower
and rights of the Lender
herein with respect to Letters
of Credit shall be in addition
to the obligations of the
Borrower and rights of the Lender
under the Letter of Credit Documents.
<Page>
ARTICLE 3
CONDITIONS PRECEDENT TO LOANS
Section 3.1 Conditions
To Effectiveness. The obligation
of the Lender to make Loans and/or
issue Letters of Credit hereunder
shall not become effective until
the date on which each of the
following conditions is satisfied
(or waived in accordance with
Section 10.2).
(a) The Lender shall
have received all fees and other
amounts due and payable on or prior
to the Closing Date, including
reimbursement or payment of all
out-of-pocket expenses (including
reasonable fees, charges and
disbursements of counsel to the
Lender) required to be reimbursed
or paid by the Borrower hereunder,
under any other Loan Document
and under any agreement with the
Lender.
(b) The Lender (or
its counsel) shall have received
the following:
(i) a
counterpart of this Agreement
signed by or on behalf of each
party thereto or written evidence
satisfactory to the Lender (which
may include telecopy
transmission of a signed
signature page of this Agreement)
that such party has signed a
counterpart of this Agreement;
(ii) a duly
executed Revolving Credit Note
payable to the Lender;
(iii) a duly
executed Subsidiary Guarantee
Agreement and Indemnity
and Contribution Agreement;
(iv) a
certificate of the Secretary
or Assistant Secretary of each
Loan Party in the form of
Exhibit 3.1(b)(iv), attaching
and certifying copies of its
bylaws and of the resolutions
of its boards of directors,
authorizing the execution,
delivery and performance of the
Loan Documents to which it is
a party and certifying the name,
title and true signature of each
officer of such Loan Party
executing the Loan Documents to
which it is a party;
(v) certified
copies of the articles of
incorporation or other charter
documents of each Loan Party,
together with certificates of
good standing or existence
from the Secretary of State of
the jurisdiction of
incorporation of such Loan
Party and each other
jurisdiction where such Loan
Party is required to be
qualified to do business as
a foreign corporation;
(vi) a
favorable written opinion of
counsel to the Loan Parties,
addressed to the Lender, and
covering such matters relating
to the Loan Parties, the Loan
Documents and the transactions
contemplated therein as the
Lender shall reasonably request;
(vii) a
certificate in the form of
Exhibit 3.1(b)(vii), dated
the Closing Date and signed
by a Responsible Officer,
confirming compliance with
the conditions set forth in
paragraphs (a), (b) and (c)
of Section 3.2;
(viii)
duly executed Notices of
Borrowing, Letter of Credit
Notices and Letter of Credit
Documents, if applicable;
<Page>
(ix) a
duly executed Closing
Statement and Disbursement
Agreement;
(x)
certified copies of all
consents, approvals,
authorizations,
registrations or filings,
if any, required to be made
or obtained by each Loan
Party in connection with the
Loans;
(xi)
Borrower shall have delivered
the notice required by Section
2.8(b) of the Original Credit
Agreement not less than three
Business Days prior to the
initial funding of Loans
and/or issuance of Letters of
Credit hereunder; and
(xii) all
other documents deemed
reasonably necessary by the
Lender. Upon the effectiveness
of this Agreement, the Loans,
if any, outstanding under the
Original Credit Agreement will
be funded hereunder, and all
Letters of Credit issued and
outstanding under the Original
Credit Agreement shall
automatically, without further
action on the part of Borrower,
be deemed to constitute
outstanding letters of credit
issued under this Agreement.
(c) Nothing has
come to the attention of the
Lender regarding (i) pending or
threatened litigation involving
the Borrower or any Subsidiary
or (ii) compliance by the Borrower
and each Subsidiary with
environmental, OSHA and other
public health, safety or welfare
laws and regulations, employee
benefit plans or insurance
coverages that would be reasonably
likely to have a Material Adverse
Effect.
Section 3.2 Each
Credit Event. The obligation
of the Lender to make a Loan
or issue a Letter of Credit is
subject to the satisfaction of
the following conditions:
(a) at the time of
and immediately after giving
effect to such Borrowing or
issuance of a Letter of Credit,
no Default or Event of Default
shall exist; and
(b) all
representations and warranties
of each Loan Party set forth
in the Loan Documents shall be
true and correct in all material
respects on and as of the date of
such Borrowing or issuance of a
Letter of Credit, in each case
before and after giving effect
thereto;
(c) since the date
of the most recent financial
statements of the Borrower
described in Section 5.1(a),
there shall have been no
change which has had or could
reasonably be expected to have
a Material Adverse Effect;
(d) the Lender shall
have received such other
documents, certificates,
information or legal opinions
as the Lender may reasonably
request, all in form and substance
reasonably satisfactory to the
Lender; and
(e) with respect to
each issuance of a Letter of
Credit, the Lender shall have
received all LOC Documents it
may require.
Each Borrowing or issuance
of a Letter of Credit shall be
deemed to constitute a
representation and warranty by
the Borrower on the date thereof
as to the matters specified in
paragraphs (a), (b) and (c) of
this Section 3.2.
<Page>
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and
warrants to the Lender as follows:
Section 4.1 Existence;
Power. The Borrower and each of
the Guarantors (i) is duly
organized, validly existing and
in good standing as a corporation
under the laws of the
jurisdiction of its organization,
(ii) has all requisite power and
authority to carry on its business
as now conducted, and (iii) is
duly qualified to do business,
and is in good standing, in each
jurisdiction where such
qualification is required, except
where a failure to be so qualified
could not reasonably be expected
to result in a Material Adverse
Effect.
Section 4.2
Organizational Power; Authorization.
The execution, delivery and performance
by each Loan Party of the Loan
Documents to which it is a party are
within such Loan Party's organizational
powers and have been duly authorized by
all necessary organizational, and if
required, stockholder action. This
Agreement has been duly executed and
delivered by the Borrower, and
constitutes, and each other Loan
Document to which any Loan
Party is a party, when executed
and delivered by such Loan Party,
will constitute, valid and binding
obligations of the Borrower or such
Loan Party (as the case may be),
enforceable against it in accordance
with their respective terms, except
as may be limited by applicable
bankruptcy, insolvency,
reorganization, moratorium, or
similar laws affecting the
enforcement of creditors'
rights generally and by general
principles of equity.
Section 4.3
Governmental Approvals; No
Conflicts. The execution,
delivery and performance by
the Borrower of this Agreement,
and by each Loan Party of the
other Loan Documents to which it
is a party (a) do not require any
consent or approval of,
registration or filing with, or
any action by, any Governmental
Authority, except those as have
been obtained or made and are in
full force and effect or where
the failure to do so, individually
or in the aggregate, could not
reasonably be expected to have a
Material Adverse Effect, (b) will
not violate any applicable law or
regulation or the charter, bylaws
or other organizational documents
of the Borrower or any of its
Subsidiaries or any order of any
Governmental Authority, (c) will
not violate or result in a default
under any indenture, material
agreement or other material
instrument binding on the Borrower
or any of its Subsidiaries or any
of their assets or give rise to
a right thereunder to require any
payment to be made by the Borrower
or any of its Subsidiaries
and (d) will not result in the
creation or imposition of any
Lien on any asset of the Borrower
or any of its Subsidiaries, except
Liens (if any) created under the
Loan Documents.
Section 4.4 Financial
Statements. The Borrower has
furnished to the Lender
the audited consolidated balance
sheet of the Borrower and its
Subsidiaries as of September 30,
2011 and the related consolidated
statements of income, shareholders'
equity and cash flows for
the fiscal year then ended and
interim financial statements for
each fiscal quarter through the
fiscal quarter ended June 30, 2012.
Such financial statements fairly
present the consolidated
financial condition of the
Borrower and its Subsidiaries
as of such dates and the consolidated
results of operations for such
periods in conformity with GAAP
consistently applied, subject, in
the case of interim statements,
to year end audit adjustments and
the absence of footnotes. Since
the date of the unaudited financial
statements described above, there
have been no changes with
<Page>
respect to the Borrower and its
Subsidiaries which have had or
could reasonably be expected to
have, singly or in the aggregate,
a Material Adverse Effect.
Section 4.5 Litigation
and Environmental Matters.
(a) No litigation,
investigation or proceeding of or
before any arbitrators or
Governmental Authorities is pending
against or, to the knowledge of the
Borrower, threatened against or
affecting the Borrower or any of
its Subsidiaries (i) as to which
there is a reasonable possibility
of an adverse determination that
could reasonably be expected to
have, either individually or in
the aggregate, a Material Adverse
Effect or (ii) which in any manner
draws into question the validity
or enforceability of this Agreement
or any other Loan Document.
(b) Except for the
matters set forth on Schedule 4.5,
neither the Borrower nor
any of its Subsidiaries (i) to the
best of its actual knowledge, has
failed to comply with any
Environmental Law or to obtain,
maintain or comply with any permit,
license or other approval
required under any Environmental
Law, (ii) to the best of its actual
knowledge, has become subject to
any Environmental Liability, (iii)
has received notice of any claim
with respect to any Environmental
Liability or (iv) knows of any
basis for any Environmental
Liability.
Section 4.6 Compliance
with Laws and Agreements. To the
best of its actual knowledge, the
Borrower and each Subsidiary is in
compliance with (a) all applicable
laws, rules, regulations and orders
of any Governmental Authority, and
(b) all indentures, agreements
or other instruments binding upon
it or its properties, except where
non-compliance, either singly
or in the aggregate, could not
reasonably be expected to result
in a Material Adverse Effect.
Section 4.7 Investment
Company Act, Etc. Neither the
Borrower nor any of its Subsidiaries
is (a) an "investment company," as
defined in, or subject to regulation
under, the Investment Company Act of
1940, as amended, (b) a "holding
company" as defined in, or subject
to regulation under, the Public
Utility Holding Company Act of
1935, as amended or (c) otherwise
subject to any other regulatory
scheme limiting its ability to
incur debt.
Section 4.8 Taxes.
The Borrower and its Subsidiaries
and each other Person for whose
taxes the Borrower or any
Subsidiary could become liable
have timely filed or caused
to be filed all Federal income
tax returns and all other material
tax returns that are required to be
filed by them, and have paid all
taxes shown to be due and payable
on such returns or on any
assessments made against it or its
property and all other taxes, fees
or other charges imposed on it
or any of its property by any
Governmental Authority, except (i)
to the extent the failure to do so
would not have a Material Adverse
Effect or (ii) where the same are
currently being contested in
good faith by appropriate proceedings
and for which the Borrower or such
Subsidiary, as the case may be, has
set aside on its books adequate
reserves. The charges, accruals
and reserves on the books of the
Borrower and its Subsidiaries in
respect of such taxes are adequate,
and no tax liabilities that could
be materially in excess of the
amount so provided are anticipated.
Section 4.9 Margin
Regulations. None of the proceeds
of any of the Loans will be used
for "purchasing" or "carrying"
any "margin stock" with the
respective meanings of
<Page>
each of such terms under Regulation
U as now and from time to time
hereafter in effect or for
any purpose that violates the
provisions of the applicable
Margin Regulations.
Section 4.10 ERISA.
No ERISA Event has occurred or is
reasonably expected to occur that,
when taken together with all other
such ERISA Events for which
liability is reasonably expected to
occur, could reasonably be expected
to result in a Material Adverse
Effect. The present value of all
accumulated benefit obligations under
each Plan (based on the assumptions
used for purposes of Statement of
Financial Standards No. 87) did not,
as of the date of the most recent
financial statements reflecting such
amounts, exceed the fair market value
of the assets of such Plan, and the
present value of all accumulated
benefit obligations of all
underfunded Plans (based on the
assumptions used for purposes of
Statement of Financial Standards
No. 87) did not, as of the date
of the most recent financial
statements reflecting such
amounts, exceed the fair market
value of the assets of all such
underfunded Plans.
Section 4.11 Ownership
of Property.
(a) Each of the
Borrower and its Subsidiaries
has good title to, or valid
leasehold interests in, all
of its real and personal
property material to the
operation of its business.
(b) Each of the Borrower
and its Subsidiaries owns, or is
licensed, or otherwise has the right,
to use, all patents, trademarks,
service marks, trade names, copyrights
and other intellectual property
material to its business, and the
use thereof by the Borrower and
its Subsidiaries does not infringe
on the rights of any other Person,
except for any such infringements
that, individually or in the
aggregate, would not have a
Material Adverse Effect.
Section 4.12 Disclosure.
The Borrower has disclosed to the
Lender all agreements, instruments,
and corporate or other restrictions
to which the Borrower or any of its
Subsidiaries is subject, and all
other matters known to any of them,
that, individually or in the
aggregate, could reasonably be
expected to result in a Material
Adverse Effect. None of the
reports (including without limitation
all reports that the Borrower is
required to file with the
Securities and Exchange Commission),
financial statements, certificates
or other information furnished by
or on behalf of the Borrower to the
Lender in connection with the
negotiation of this Agreement or
any other Loan Document or delivered
hereunder or thereunder (as modified
or supplemented by any other
information so furnished) contain
any material misstatement of
fact or omits to state any material
fact necessary to make the statements
therein, taken as a whole, in light
of the circumstances under which they
were made, not misleading.
Section 4.13 Labor
Relations. There are no strikes,
lockouts or other material
labor disputes or grievances
against the Borrower or any of its
Subsidiaries, or, to the Borrower's
knowledge, threatened against or
affecting the Borrower or any of its
Subsidiaries, and no
significant unfair labor practice,
charges or grievances are pending
against the Borrower or any of
its Subsidiaries, or to the Borrower's
knowledge, threatened against any of
them before any Governmental Authority.
All payments due from the Borrower or
any of its Subsidiaries pursuant to
the provisions of any collective
bargaining agreement have been paid
or accrued as a liability on the books
of the Borrower or any such
Subsidiary, except where the failure
to do so could not reasonably be
expected to have a Material Adverse
Effect.
<Page>
Section 4.14 Subsidiaries.
Schedule 4.14 sets forth the name
of, the ownership interest of the
Borrower in, the jurisdiction of
incorporation of, and the type of,
each Subsidiary and identifies each
Subsidiary that is a Subsidiary
Loan Party, in each case as of the
Closing Date.
Section 4.15 Legal Name.
The exact legal name of the
Borrower, including spelling and
punctuation, as such name appears in
its articles of incorporation, is as
set forth in the preamble hereof.
The Borrower's state issued
organizational identification number
is M90326.
Section 4.16 No
Restrictions on Dividends. There
are no restrictions on dividends
or repayment of intercompany loans
in any agreements of any Subsi
diary Loan Party.
Section 4.17 Solvency.
The fair saleable value of the
Borrower's assets, measured on a going
concern basis, exceeds all probable
liabilities, including those to be
incurred pursuant to this Agreement.
Neither the Borrower nor any Subsidiary
has incurred, or believes that it will
incur after giving effect to the
transactions contemplated by this
Agreement, debts beyond its ability
to pay such debts as they become due.
Section 4.18 Insurance.
The property and liability insurance
maintained by the Borrower and its
Subsidiaries on and as of the date
hereof complies in all respects with
the requirements set forth in Section
5.8. All such insurance policies are
in full force and effect. All premiums
(if any) due on such insurance policies
or renewals thereof have been paid and
there is no default under any of such
insurance policies. Neither the
Borrower nor its Subsidiaries have
received any notice or other communication
from any issuer of such insurance policies
canceling or materially amending any such
insurance policies, any deductibles or
retained amounts thereunder, or the
annual or other premiums payable
thereunder, and no such cancellation
or material amendment is threatened.
Section 4.19 Outstanding
Indebtedness. On the date of this
Agreement, the Borrower has no
outstanding Indebtedness except (i)
as reflected on the financial statements
of the Borrower which have been provided
to the Lender or disclosed in Schedule 7.1
attached hereto and (ii) Indebtedness
incurred in the ordinary course of business
subsequent to the date of such financial
statements.
Section 4.20 Letters of
Credit Issued Outside the Provisions of
the Agreement. On the date of this
Agreement, the Borrower has no letters
of credit issued outside the provisions
of this Agreement for its account except
as disclosed on Schedule 4.20 attached
hereto.
ARTICLE 5
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees
that so long as the Lender has a Revolving
Commitment or Term Commitment hereunder or
the principal of and interest on any Loan
or any fee remains unpaid:
<Page>
Section 5.1 Financial
Statements and Other Information. The
Borrower will deliver to the Lender:
(a) as soon as available
and in any event within 120 days after
the end of each fiscal year of Borrower,
(i) a copy of the annual audited report
for such fiscal year for the Borrower and
its Subsidiaries, containing a consolidated
balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal
year and the related consolidated
statements of income, stockholders'
equity and cash flows (together with
all footnotes thereto) of the Borrower
and its Subsidiaries for such fiscal year,
setting forth in each case in comparative
form the figures for the previous fiscal
year, all in reasonable detail and reported
on by Hancock Askew & Co. LLP or
other independent certified public
accountants of nationally recognized
standing chosen by Borrower and
acceptable to the Lender, (without
a "going concern" or like
qualification, exception or explanation
and without any qualification or
exception as to scope of such audit)
to the effect that such financial
statements present fairly in all
material respects the financial
condition and the results of
operations of the Borrower and its
Subsidiaries for such fiscal year
on a consolidated basis in accordance
with GAAP and that the examination by
such accountants in connection with
such consolidated financial statements
has been made in accordance with
generally accepted auditing standards
and (ii) annual unaudited consolidating
balance sheets and income statements
for the Borrower and its Subsidiaries;
(b) as soon as available
and in any event within 60 days after
the end of each of the first three
fiscal quarters of each fiscal year
of the Borrower, (i) an unaudited
consolidated balance sheet of the
Borrower and its Subsidiaries as of
the end of such fiscal quarter with
comparative information for the
previous year end, (ii) the related
unaudited consolidated statements
of income of the Borrower and its
Subsidiaries for such fiscal quarter
and the then elapsed portion of such
fiscal year, setting forth in each
case in comparative form the figures for
the corresponding quarter and the
corresponding portion of Borrower's
previous fiscal year, and
(iii) consolidated statements of cash
flow for the then elapsed portion of
such fiscal year with
comparative information for the
corresponding portion of the previous
fiscal year, all certified by
the chief financial officer or
treasurer of the Borrower as
presenting fairly in all material
respects the financial condition and
results of operations of the Borrower
and its Subsidiaries on a
consolidated basis in accordance with
GAAP, subject to normal year-end audit
adjustments and the absence of
footnotes;
(c) concurrently with the
delivery of the financial statements
or information referred to in clauses
(a) and (b) above, (i) a certificate
of a Responsible Officer, (1)
certifying, to the best of his actual
knowledge, as to whether there
exists a Default or Event of Default
on the date of such certificate, and
if a Default or an Event of Default
then exists, specifying the details
thereof and the action which the
Borrower has taken or proposes to take
with respect thereto and (2) stating
whether any change in GAAP or the
application thereof has occurred
since the date of the Borrower's
audited financial statements
referred to in Section 4.4 and,
if any change has occurred, specifying
the effect of such change on the
financial statements accompanying such
certificate and (ii) a Covenant
Compliance Certificate;
(d) promptly after the
same become publicly available,
copies of all periodic and other
reports, proxy statements and other
materials filed with the Securities
and Exchange Commission, or any
Governmental Authority succeeding to
any or all functions of said
<Page>
Commission, or with any national
securities exchange, or distributed
by the Borrower to its shareholders
generally, as the case may be; and
(e) promptly following
any request therefor, such other
information regarding
the results of operations, business
affairs and financial condition of
the Borrower or any Subsidiary as
the Lender may reasonably request.
Section 5.2 Notices of
Material Events. The Borrower will
furnish to the Lender prompt written
notice of the following:
(a) the occurrence of
any Default or Event of Default;
(b) the filing or
commencement of any action, suit
or proceeding by or before
any arbitrator or Governmental
Authority against or, to the
knowledge of the Borrower, affecting
the Borrower or any Subsidiary which,
if adversely determined, could
reasonably be expected to
result in a Material Adverse Effect;
(c) the occurrence of any
event or any other development by which the
Borrower or any of its Subsidiaries (i)
fails to comply with any Environmental
Law or to obtain, maintain or comply
with any permit, license or other
approval required under any
Environmental Law, (ii) becomes
subject to any Environmental Liability,
(iii) receives notice of any claim with
respect to any Environmental Liability,
or (iv) becomes aware of any basis for
any Environmental Liability and in each
of the preceding clauses, which
individually or in the aggregate, could
reasonably be expected to result in a
Material Adverse Effect;
(d) the occurrence of any
ERISA Event that alone, or together
with any other ERISA Events that have
occurred, could reasonably be expected
to result in a Material Adverse Effect;
(e) the acquisition or
formation of a new Material Subsidiary;
(f) transfers of assets
to non-Material Subsidiaries outside
the ordinary course of business; and
(g) any other development
that results in, or could reasonably be
expected to result in, a Material
Adverse Effect.
Each notice delivered under this
Section shall be accompanied by a written
statement of a Responsible Officer setting
forth the details of the event or
development requiring such notice
and any action taken or proposed to be
taken with respect thereto.
Section 5.3 Existence;
Conduct of Business. The Borrower will, a
nd will cause each of its Subsidiaries to,
do or cause to be done all things
necessary to preserve, renew and maintain
in full force and effect its legal
existence and its respective rights,
licenses, permits, privileges,
franchises, patents, copyrights,
trademarks and trade names material
to the conduct of its business and will
continue to engage in substantially the
same business as presently conducted
or such other businesses that are
reasonably related thereto; provided,
that nothing in this Section shall
prohibit any merger, consolidation,
liquidation or dissolution permitted
under Section 7.3.
<Page>
Section 5.4 Compliance with
Laws, Etc. The Borrower will, and will
cause each of its Subsidiaries to,
comply with all laws, rules, regulations
and requirements of any Governmental
Authority applicable to its properties,
except where the failure to do so, either
individually or in the aggregate, could
not reasonably be expected to result
in a Material Adverse Effect.
Section 5.5 Payment of
Obligations. The Borrower will, and
will cause each of its Subsidiaries to,
pay and discharge at or before maturity,
all of its obligations and liabilities
(including without limitation all tax
liabilities and claims that could result
in a statutory Lien) before the same
shall become delinquent or in default,
except where (a) the validity or amount
thereof is being contested in good
faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set
aside on its books adequate reserves
with respect thereto in accordance with
GAAP and (c) the failure to make
payment pending such contest could
not reasonably be expected to result
in a Material Adverse Effect.
Section 5.6 Books and
Records. The Borrower will, and
will cause each of its
Subsidiaries to, keep proper books
of record and account in which full,
true and correct entries
shall be made of all dealings and
transactions in relation to its
business and activities to the extent
necessary to prepare the consolidated
financial statements of Borrower in
conformity with GAAP.
Section 5.7 Visitation,
Inspection, Etc. The Borrower will,
and will cause each of its
Subsidiaries to, permit any
representative of the Lender, on
reasonable advance written notice,
to visit and inspect its properties,
to examine its books and records and
to make copies and take extracts
therefrom, and to discuss its affairs,
finances and accounts with any of
its officers and with its independent
certified public accountants, all at
such reasonable times and as often as
the Lender may reasonably request after
reasonable prior notice to the Borrower.
Section 5.8 Maintenance of
Properties; Insurance. The Borrower
will, and will cause each of its
Subsidiaries to, (a) keep and maintain
all property material to the conduct of
its business in good working order and
condition, ordinary wear and tear
except where the failure to do so,
either individually or it the aggregate,
could not reasonably be expected to
result in a Material Adverse Effect
and (b) maintain with financially
sound and reputable insurance
companies, insurance with respect to
its properties and business, and the
properties and business of its
Subsidiaries, against loss or damage
of the kinds and at least in the amounts
as maintained by the Borrower and the
Subsidiaries on the date of this
Agreement; provided that such amounts
shall be appropriately adjusted for
inflation and for changes in the nature
and volume of the business conducted by
the Borrower and its Subsidiaries;
provided further, however, that for
purposes of this Section 5.8, the
self-insurance program of the Borrower
and its Subsidiaries with
respect to comprehensive and collision
damage to its highway vehicles,
comprehensive general and automotive
liability and property damage and as
in effect on the date hereof is hereby
deemed adequate insurance against
losses.
Section 5.9 Use of
Proceeds. The Borrower will use the
proceeds of the Loans
to repay the outstanding Loans under
the Original Credit Agreement made by
Bank of America and SunTrust to
refinance existing debt, finance
working capital needs, capital
expenditures and for other general
corporate purposes of the Borrower
and its Subsidiaries. No
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part of the proceeds of any Loan
will be used, whether directly or
indirectly, for any purpose that
would violate any rule or regulation
of the Board of Governors of the
Federal Reserve System, including
Regulations T, U or X.
Section 5.10 Additional
Subsidiaries. If any additional
Material Subsidiary is acquired or
formed after the Closing Date, the
Borrower will, within ten (10)
business days after such Material
Subsidiary is acquired or formed,
notify the Lender thereof and will,
if such Subsidiary is not a Foreign
Subsidiary or a SPE Subsidiary, cause
such Material Subsidiary to
become a Subsidiary Loan Party by
executing agreements in the form of
Annex I to Exhibit D and Annex I to
Exhibit E in form and substance
satisfactory to the Lender and will
cause such Material Subsidiary to
deliver simultaneously therewith
similar documents applicable to such
Material Subsidiary required under
Section 3.1 as reasonably requested by
the Lender. If the Borrower forms or
acquires additional Subsidiaries
("non-Material Subsidiaries") which are
neither Material Subsidiaries, Foreign
Subsidiaries nor SPE Subsidiaries, at
such time as the assets, revenues or
income of all such non-Material
Subsidiaries when considered on a
consolidated basis would reach the
level required for a Subsidiary to
qualify as a Material Subsidiary;
all then existing non-Material
Subsidiaries and all subsequently
formed or acquired non-Material
Subsidiaries shall become Subsidiary
Loan Parties by complying with the
requirements set forth in this Section
5.10.
Section 5.11 Deposit
Relationship. The Borrower will, and
will cause each of its Subsidiaries to,
maintain its primary depository and cash
management accounts with the Lender.
ARTICLE 6
FINANCIAL COVENANTS
The Borrower covenants and agrees
that so long as the Lender has a Revolving
Commitment or Term Commitment hereunder
or the principal of or interest on or
any Loan remains unpaid or any fee
remains unpaid:
Section 6.1 Leverage Ratio.
The Borrower will have, as of the end of
each fiscal quarter of the Borrower,
commencing with the fiscal quarter
ending September 30, 2012, a
Leverage Ratio of not greater
than 55%.
Section 6.2 Fixed Charge
Coverage Ratio. The Borrower will
have, as of the end of each fiscal
quarter of the Borrower, commencing
with the fiscal quarter ending
September 30, 2012, a Fixed Charge
Coverage Ratio of not less than
2.25:1.0, calculated based on a
rolling four quarter basis.
For purposes of this Article 6,
notwithstanding anything in this
Agreement to the contrary, for
purposes of calculating the Leverage
Ratio and the Fixed Charge Coverage
Ratio, the Indebtedness of any Person
shall include non-recourse
indebtedness of such Person and
of any partnership or joint venture
in which such Person is a general
partner or a joint venturer, except
that with respect to Indebtedness
of MRP SE Waterfront Residential,
LLC ("Waterfront Residential"),
shall only include the Borrower's
pro rata share of Waterfront
Residential non-
<Page>
recourse indebtedness based on
Borrower's (or its applicable
Subsidiary's) ownership percentage
in such entity.
ARTICLE 7
NEGATIVE COVENANTS
The Borrower covenants and
agrees that so long as the Lender
has a Revolving Commitment or Term
Commitment hereunder or the principal
of or interest on any Loan remains
unpaid or any fee remains unpaid:
Section 7.1 Indebtedness.
The Borrower will not, and will not
permit any of its Subsidiaries to,
create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness created
pursuant to the Loan Documents;
(b) Indebtedness existing
on the date hereof and set forth on
Schedule 7.1 (including unborrowed
portions of any lines of credit
shown thereon) and extensions,
renewals and replacements of any
such Indebtedness that do not
increase the outstanding principal
amount thereof (immediately prior
to giving effect to such extension,
renewal or replacement) or shorten
the maturity or the weighted
average life thereof;
(c) Indebtedness of
the Borrower or any Subsidiary in
a principal amount which, when
combined with Indebtedness permitted
by Section 7.1(h) and Section 7.1(i),
does not exceed $25,000,000.00 in the
aggregate and which is incurred to
finance the acquisition, construction
or improvement of any fixed or capital
assets, including Capital Lease
Obligations and any Indebtedness
assumed in connection with the
acquisition of any such assets of
secured by a Lien on any such assets
prior to the acquisition thereof;
provided, that such Indebtedness is
incurred prior to or within 90 days
after such acquisition or the
completion of such construction
or improvements or extensions,
renewals, and replacements of any
such Indebtedness that do not
increase the outstanding principal
amount thereof (immediately prior to
giving effect to such extension,
renewal or replacement) or shorten
the maturity or the weighted
average life thereof;
(d) Permitted
Subordinated Debt;
(e) Indebtedness in
respect of obligations under
Hedging Agreements permitted by
Section 7.10;
(f) current Indebtedness
incurred in the ordinary course of
business, trade letters of credit
and Indebtedness arising in
connection with letters of credit
obtained in the ordinary course of
business;
(g) Indebtedness in the
form of mortgage loans in connection
with permanent financing of improved
commercial real properties;
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(h) other unsecured
Indebtedness outstanding at any
time which, when added to
Indebtedness permitted by Section
7.1(c) and (i), does not exceed
$25,000,000.00 in the aggregate; and
(i) Indebtedness of the
Borrower or any Subsidiary in a
principal amount which, when combined
with Indebtedness permitted by Section
7.1(c) and (h), does not exceed
$25,000,000.00 in the aggregate, which
is secured by a Lien on any fixed or
capital assets, including Capital
Lease Obligations, and which does
not otherwise qualify as Indebtedness
permitted under the terms of Section
7.1(c).
Section 7.2 Negative
Pledge. The Borrower will not,
and will not permit any
of its Subsidiaries to, create,
incur, assume or suffer to exist
any Lien on any of its assets or
property now owned or hereafter
acquired except:
(a) Permitted
Encumbrances;
(b) any Liens on any
property or assets of the Borrower
or any Subsidiary existing on the
Closing Date set forth on Schedule
7.2; provided, that such Lien shall
not apply to any other property or
asset of the Borrower or any
Subsidiary;
(c) purchase money
Liens upon or in any fixed or
capital assets to secure the
purchase price or the cost of
construction or improvement of such
fixed or capital assets or to
secure Indebtedness incurred solely
for the purpose of financing the
acquisition, construction or improvement
of such fixed or capital assets
(including Liens securing any Capital
Lease Obligations); provided, that (i)
such Lien secures Indebtedness
permitted by Section 7.1(c), (ii)
such Lien attaches to such asset
concurrently or within 90 days
after the acquisition, improvement or
completion of the construction thereof;
(iii) such Lien does not extend to any
other asset; and (iv) the Indebtedness
secured thereby does not exceed the
cost of acquiring, constructing or
improving such fixed or capital assets;
(d) any Lien (i) existing
on any asset of any Person at the time
such Person becomes a Subsidiary of the
Borrower, (ii) existing on any asset
of any Person at the time such Person
is merged with or into the Borrower or
any Subsidiary of the Borrower or (iii)
existing on any asset prior to the
acquisition thereof by the Borrower
or any Subsidiary of the Borrower;
provided, that any such Lien was not
created in the contemplation of any
of the foregoing and any such Lien
secures only those obligations which
it secures on the date that such Person
becomes a Subsidiary or the date of
such merger or the date of such
acquisition;
(e) Liens securing
Indebtedness permitted under Section
7.1;
(f) Liens or pledges of
securities of the Borrower or any
Subsidiary to governmental agencies
pursuant to the Borrower's or any
Subsidiary's insurance program;
(g) Rights reserved or
vested in governmental authority
which do not materially impair the
use of such property;
(h) extensions,
renewals, or replacements of any
Lien referred to in paragraphs
(a) through (g) of this Section;
provided, that the principal amount
of the
<Page>
Indebtedness secured thereby is not
increased and that any such
extension, renewal or replacement
is limited to the assets originally
encumbered thereby;
(i) Liens arising under
that certain Contingent Mortgage
and Security Agreement dated as of
May 18, 2012, from Lake Louisa, LLC,
a Florida limited liability
company and a Subsidiary of Borrower,
in favor of Cemex Construction
Materials, LLC, a Delaware limited
liability company, in connection
with a Mining Lease dated May 18,
2012, related to certain real
property located in Lake County,
Florida, as more specifically
described in such mortgage; and
(j) Liens on improved
commercial real properties in
connection with permanent financing
thereof.
Section 7.3 Fundamental
Changes.
(a) Except as permitted
by Section 7.6, the Borrower will
not, and will not permit any
Subsidiary to, merge into or
consolidate into any other Person,
or permit any other Person to merge
into or consolidate with it, or sell,
lease, transfer or otherwise dispose
of (in a single transaction or a
series of transactions) all or
substantially all of its assets (in
each case, whether now owned or
hereafter acquired) or all or
substantially all of the stock
of any of its Subsidiaries (in
each case, whether now owned or
hereafter acquired) or liquidate or
dissolve; provided, that if at the
time thereof and immediately after
giving effect thereto, no Default or
Event of Default shall have occurred
and be continuing (i) the Borrower
or any Subsidiary may
merge with a Person if the Borrower
(or such Subsidiary if the Borrower
is not a party to such
merger) is the surviving Person,
(ii) any Subsidiary may merge into
another Subsidiary; provided,
that if any party to such merger is
a Subsidiary Loan Party, the
Subsidiary Loan Party shall be
the surviving Person, (iii) any
Subsidiary may sell, transfer,
lease or otherwise dispose of all
or substantially all of its assets
to the Borrower or to a Subsidiary
Loan Party, and (iv) any Subsidiary
(other than a Subsidiary Loan Party)
may liquidate or dissolve if the
Borrower determines in good faith
that such liquidation or dissolution
is in the best interests of the
Borrower and is not materially
disadvantageous to the Lender;
provided, that any such merger
involving a Person that is not a
wholly-owned Subsidiary immediately
prior to such merger shall
not be permitted unless also
permitted by Section 7.4.
Notwithstanding the foregoing, (i)
the Borrower and the Guarantors
shall be permitted to transfer real
properties to SPE Subsidiaries for
the purpose of permanent financing
of such properties, and (ii) the
Borrower shall be permitted to
split into two or more entities
(collectively, the "Resulting
Companies"), provided that (A) no
Default or Event of Default shall
have occurred and be continuing,
(B) the Borrower shall continue
in existence as one of the Resulting
Companies, (C) the Resulting
Companies shall execute and deliver
a agreement in form and substance
acceptable to the Lender in its sole
discretion, pursuant to which the
Resulting Companies not a party
hereto agree to join in and
become a party to, and subject to
the terms and conditions of, this
Agreement, and the Resulting
Companies acknowledge, agree and
confirm that the financial
covenants contained herein shall
thereafter be applicable to the
Resulting Companies on a combined
basis, (D) the Resulting
Companies other than Borrower
shall have delivered to Lender, in
form and substance acceptable
to Lender in its sole discretion,
the promissory notes, contribution
agreements, certificates, and
other instruments contemplated by
Section 3.1(b)(ii), (iv), (v), (vi),
(x) and (xi) of this Agreement,
(E) Lender shall have approved the
form of any indemnification and/or
<Page>
subordination agreement by and among
the Resulting Companies, or any of
them, and (F) the Resulting Companies
shall have reimbursed Lender for the
costs and expenses incurred by Lender
and its counsel in connection with
such transaction.
(b) The Borrower will not,
and will not permit any of its
Subsidiaries to, engage to any material
extent in any business other than
businesses of substantially the same type
conducted by the Borrower and its
Subsidiaries on the date hereof and
businesses reasonably related thereto.
Section 7.4 Investments,
Loans, Etc. The Borrower will not, and
will not permit any of its Subsidiaries
to, purchase, hold or acquire (including
pursuant to any merger with
any Person that was not a wholly-owned
Subsidiary prior to such merger), any
common stock, evidence of indebtedness
or other securities (including any
option, warrant, or other right to
acquire any of the foregoing) of, make
or permit to exist any loans or
advances to, Guarantee any
obligations of, or make or permit to
exist any investment or any other
interest in, any other Person
(all of the foregoing being collectively
called "Investments"), or purchase or
otherwise acquire (in
one transaction or a series of
transactions) any assets of any other
Person ("Acquisitions"), except:
(a) Investments (other
than Permitted Investments) existing
on the date hereof and set forth on
Schedule 7.4;
(b) Permitted Investments;
(c) Guarantees constituting
Indebtedness permitted by Section 7.1;
provided, that the aggregate principal
amount of Indebtedness of Subsidiaries
that are not Subsidiary Loan
Parties that is Guaranteed by any Loan
Party shall be subject to the limitation
set forth in clause (d) hereof;
(d) Investments made by the
Borrower in or to any Subsidiary and by
any Subsidiary to the Borrower or in or
to another Subsidiary;
(e) loans or advances to
employees, officers or directors of the
Borrower or any Subsidiary in the ordinary
course of business for travel, relocation
and related expenses;
(f) Hedging Agreements
permitted by Section 7.10;
(g) Real estate investments
or joint ventures that are typical in
the Borrower's ordinary course of
business;
(h) Other Investments
which in the aggregate do not exceed
$5,000,000.00 in any fiscal year of
the Borrower; and
(i) Acquisitions not to
exceed in the aggregate in any fiscal
year of the Borrower 15% of Consolidated
Net Worth (measured at the end of the
immediately preceding fiscal year);
provided that Acquisitions in the
aggregate in any fiscal year of the
Borrower up to 20% of Consolidated
Net Worth (measured at the end of
the immediately preceding fiscal year)
may be made after delivery to the
Lender of pro forma consolidated
financial statements,
<Page>
certified by the Borrower and reasonably
acceptable to the Lender, showing that
after giving effect to such Acquisitions
no Default or Event of Default would exist.
Section 7.5 Restricted
Payments. After the date of this
Agreement, the Borrower will not, and
will not permit its Subsidiaries to,
declare or make, or agree to pay or
make, directly or indirectly, any
dividend on any class of its stock, or
make any payment on account of, or set
apart assets for a sinking or other
analogous fund for, the purchase,
redemption, retirement, defeasance or
other acquisition of, any Indebtedness
subordinated to the Obligations of the
Borrower or any options, warrants, or
other rights to purchase such
Indebtedness, whether now or hereafter
outstanding (each, a "Restricted Payment"),
except for (i) dividends not exceeding
66.6% of Consolidated Net Income
subsequent to September 30,
2003, (ii) dividends payable by the
Borrower solely in shares of any
class of its common stock,
(iii) Restricted Payments made by any
Subsidiary to the Borrower or to
another Subsidiary Loan Party and
(iv) cash redemptions of the common
stock of the Borrower; provided,
that the exceptions permitted
pursuant to clauses (i) through (iv)
shall apply only if no Default or
Event of Default has occurred and is
continuing at the time such dividend
or other payment is paid or redemption
is made.
Section 7.6 Sale of
Assets. The Borrower will not, and
will not permit any of its Subsidiaries
to, convey, sell, lease, assign,
transfer or otherwise dispose of, any
of its assets, business or property,
whether now owned or hereafter
acquired, or, in the case of any
Subsidiary, issue or sell any shares
of such Subsidiary's common stock to,
any Person other than the Borrower or
any wholly-owned Subsidiary of the
Borrower (or to qualify directors if
required by applicable law), except:
(a) the sale or other
disposition for fair market value of
obsolete or worn out property or other
property not necessary for operations
disposed of in the ordinary course of
business;
(b) the sale of assets
and Permitted Investments in the
ordinary course of the
transportation and real estate
business of the Borrower and its
Subsidiaries including, without
limitation, the sale of any parcel
of real property for fair market
value;
(c) the sale or other
disposition of such other assets in
an aggregate amount not to exceed
$5,000,000.00 during the term of
this Agreement; provided, however,
that such amount shall not include
(i) intercompany mergers of
Subsidiaries, (ii) sales, leases
or transfers of assets of any
Subsidiary to the Borrower or any
other Subsidiary, and (iii) mergers or
consolidations with the Borrower or
any Subsidiary so long as the Borrower
or such Subsidiary shall be the
surviving corporation and no Default
or Event of Default shall then exist;
and
(d) the transfer of real
properties to SPE Subsidiaries for
the purpose of permanent financing
of such properties, in the ordinary
course of business of the Borrower.
Section 7.7 Transactions
with Affiliates. The Borrower will
not, and will not permit any of its
Subsidiaries to, sell, lease or
otherwise transfer any property or
assets to, or purchase, lease or
otherwise acquire any property or
assets from, or otherwise engage in
any other transactions with, any of its
Affiliates, except (a) in the ordinary
course of business at
<Page>
prices and on terms and conditions
not less favorable to the Borrower
or such Subsidiary than could be
obtained on an arm's-length basis
from unrelated third parties including,
without limitation, those affiliate
transactions disclosed in the
Borrower's Form 10-K as on file with
the Securities and Exchange Commission
on the date hereof, (b) transactions
between or among the Borrower and
the Guarantors not involving any
other Affiliates and (c) any
Restricted Payment permitted by
Section 7.5.
Section 7.8 Restrictive
Agreements. The Borrower will not,
and will not permit any Subsidiary
to, directly or indirectly, enter
into, incur or permit to exist any
agreement that prohibits, restricts
or imposes any condition upon (a)
the ability of the Borrower or any
Subsidiary to create, incur or permit
any Lien upon any of its assets or
properties, whether now
owned or hereafter acquired, or (b)
the ability of any Subsidiary to pay
dividends or other distributions with
respect to its common stock, to make
or repay loans or advances to the
Borrower or any other Subsidiary, to
Guarantee Indebtedness of the
Borrower or any other Subsidiary or
to transfer any of its property or
assets to the Borrower or any
Subsidiary of the Borrower; provided,
that (i) the foregoing shall not apply
to restrictions or conditions imposed
by law or by this Agreement or any
other Loan Document, (ii) the foregoing
shall not apply to customary restrictions
and conditions contained in agreements
relating to the sale of a Subsidiary
pending such sale, provided such
restrictions and conditions apply
only to the Subsidiary that is
sold and such sale is permitted
hereunder, (iii) clause (a) shall
not apply to restrictions or
conditions imposed by any agreement
relating to secured Indebtedness
permitted by this Agreement if such
restrictions and conditions apply
only to the property or assets
securing such Indebtedness and (iv)
clause (a) shall not apply to
customary provisions in leases and
other contracts restricting the
assignment thereof.
Section 7.9 Sale and
Leaseback Transactions. The
Borrower will not, and will not
permit any of the Subsidiaries to,
enter into any arrangement,
directly or indirectly,
whereby it shall sell or transfer
any property, real or personal,
used or useful in its business,
whether now owned or hereinafter
acquired, and thereafter rent or
lease such property or other
property that it intends to use for
substantially the same purpose or
purposes as the property sold
or transferred.
Section 7.10 Hedging
Agreements. The Borrower will not,
and will not permit any of the
Subsidiaries to, enter into any
Hedging Agreement, other than
Hedging Agreements entered into
in the ordinary course of business
to hedge or mitigate risks to which
the Borrower or any Subsidiary is
exposed in the conduct of its business
or the management of its liabilities.
Solely for the avoidance of doubt, the
Borrower acknowledges that a Hedging
Agreement entered into for speculative
purposes or of a speculative nature
(which shall be deemed to include
any Hedging Agreement under which the
Borrower or any of the Subsidiaries is
or may become obliged to make any
payment (i) in connection with the
purchase by any third party of any
common stock or any Indebtedness or
(ii) as a result of changes in the
market value of any common stock or
any Indebtedness) is not a Hedging
Agreement entered into in the ordinary
course of business to hedge or
mitigate risks.
Section 7.11 Amendment
to Material Documents. The Borrower
will not, and will not permit any
Subsidiary to, amend, modify or
waive any of its rights in a manner
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materially adverse to the Lender under
(a) its certificate of incorporation,
bylaws or other organizational
documents or (b) Material Contracts.
Section 7.12 Permitted
Subordinated Indebtedness
(a) The Borrower will not,
and will not permit any of its
Subsidiaries to (i) prepay, redeem,
repurchase or otherwise acquire for
value any Permitted Subordinated Debt,
or (ii) make any principal, interest
or other payments on any Permitted
Subordinated Debt that is not expressly
permitted by the subordination
provisions of the Subordinated Debt
Documents.
(b) The Borrower will not,
and will not permit any of its
Subsidiaries to, agree to or permit
any amendment, modification or waiver
of any provision of any Subordinated Debt
Document if the effect of such amendment,
modification or waiver is to (i) increase
the interest rate on such Permitted
Subordinated Debt for change (to
earlier dates) the dates upon which
principal and interest are due thereon;
(ii) alter the redemption, prepayment
or subordination provisions thereof;
(iii) alter the covenants and events
of default in a manner that would make
such provisions more onerous or
restrictive to the Borrower or any
such Subsidiary; or (iv) otherwise
increase the obligations of the
Borrower or any Subsidiary in respect
of such Permitted Subordinated Debt
or confer additional rights upon the
holders thereof which individually or
in the aggregate would be adverse to
the Borrower or any of its Subsidiaries
or to the Lender.
Section 7.13 Accounting
Changes. The Borrower will not, and
will not permit any Subsidiary to,
make any significant change in
accounting treatment or reporting
practices, except as required or
preferred by GAAP, or change the
fiscal year of the Borrower or of any
Subsidiary, except to change the
fiscal year of a Subsidiary to
conform its fiscal year to that of
the Borrower.
Section 7.14 Name Changes.
The Borrower will not, and will not
permit any Material Subsidiary or
Guarantor to, without thirty (30) days
prior written notice, change its
name, its place of business or, if
more than one, chief executive office,
or its mailing address or organizational
identification number if it has one.
ARTICLE 8
EVENTS OF DEFAULT
Section 8.1 Events of
Default. If any of the following
events (each an "Event of Default")
shall occur:
(a) the Borrower shall
fail to pay any principal of any
Loan when and as the same shall
become due and payable, whether
at the due date thereof or at a
date fixed for prepayment or
otherwise; or
(b) the Borrower shall
fail to pay any interest on any
Loan or any fee or any other amount
(other than an amount payable under
clause (a) of this Article) payable
under this Agreement or any other
Loan Document, when and as the same
shall become due and payable, and
such failure shall continue
unremedied for a period of ten
(10) days; or
<Page>
(c) any representation
or warranty made or deemed made by
or on behalf of the Borrower or any
Subsidiary in or in connection with
this Agreement or any other Loan
Document (including the Schedules
attached thereto) and any amendments
or modifications hereof or waivers
hereunder, or in any certificate,
report, financial statement or other
document submitted to the Lender by
any Loan Party or any representative
of any Loan Party pursuant to
or in connection with this Agreement
or any other Loan Document shall
prove to be false or misleading when
made or deemed made or submitted; or
(d) the Borrower shall
fail to observe or perform any covenant
or agreement contained in Sections 5.1
or 5.10 or Articles 6 or 7 (other than
in Section 7.14) and such failure
shall continue unremedied for a period
of thirty (30) days; or
(e) any Loan Party shall
fail to observe or perform any
covenant or agreement
contained in Section 5.9; or
(f) any Loan Party shall
fail to observe or perform any
covenant or agreement contained in
this Agreement or any other Loan
Document (other than those referred
to in clauses (a), (b), (d) and (e)
above), and such failure shall remain
unremedied for 30 days after the
earlier of (i) any officer of the
Borrower becomes aware of such
failure, or (ii) written notice thereof
shall have been given to the Borrower
by the Lender; or
(g) the Borrower, any
Subsidiary Loan Party or any other
Subsidiary subject to any Indebtedness
exceeding $100,000.00 in the aggregate
other than non-recourse Indebtedness
(a "Recourse Subsidiary") (whether as
primary obligor or as guarantor or
other surety) shall fail to pay any
principal of or premium or interest on
any Material Indebtedness that is
outstanding, when and as the same
shall become due and payable (whether
at scheduled maturity, required
prepayment, acceleration, demand or
otherwise), and such failure shall
continue after the applicable grace
period, if any, specified in the
agreement or instrument evidencing
such Indebtedness; or any other event
shall occur or condition shall exist
under any agreement or instrument
relating to such Indebtedness and
shall continue after the applicable
grace period, if any, specified in
such agreement or instrument, if the
effect of such event or
condition is to accelerate, or permit
the acceleration of, the maturity of
such Indebtedness; or any
such Indebtedness shall be declared to
be due and payable; or required to be
prepaid or redeemed (other than by
a regularly scheduled required
prepayment or redemption), purchased
or defeased, or any offer to prepay,
redeem, purchase or defease such
Indebtedness shall be required to be
made, in each case prior to the
stated maturity thereof; or
(h) the Borrower, any
Subsidiary Loan Party or any Recourse
Subsidiary shall (i) commence a
voluntary case or other proceeding
or file any petition seeking liquidation,
reorganization or other relief under any
federal, state or foreign bankruptcy,
insolvency or other similar law now or
hereafter in effect or seeking the
appointment of a custodian, trustee,
receiver, liquidator or other similar
official of it or any substantial part
of its property, (ii) consent to the
institution of, or fail to contest in
a timely and appropriate manner, any
proceeding or petition described in
clause (i) of this Section, (iii)
apply for or consent to the appointment
of a custodian, trustee, receiver,
liquidator or other similar official
for the Borrower, any such Subsidiary Loan
Party or any Recourse Subsidiary or
for a substantial part of its assets,
(iv) file an answer admitting the
material allegations of a petition
filed against it in any such
proceeding, (v) make a
<Page>
general assignment for the benefit of
creditors, or (vi) take any action
for the purpose of effecting any of
the foregoing; or
(i) an involuntary
proceeding shall be commenced or an
involuntary petition shall be filed
seeking (i) liquidation,
reorganization or other relief in
respect of the Borrower, any
Subsidiary Loan Party or any
Recourse Subsidiary or its debts,
or any substantial part of its
assets, under any federal, state or
foreign bankruptcy, insolvency or
other similar law now or hereafter
in effect or (ii) the appointment
of a custodian, trustee, receiver,
liquidator or other similar official
for the Borrower, any Subsidiary
Loan Party or any Recourse Subsidiary
or for a substantial part of its
assets, and in any such case, such
proceeding or petition shall remain
undismissed for a period of 60 days
or an order or decree approving or
ordering any of the foregoing shall
be entered; or
(j) the Borrower, any
Subsidiary Loan Party or any Recourse
Subsidiary shall become unable to pay,
shall admit in writing its inability
to pay, or shall fail to pay, its debts
as they become due; or
(k) an ERISA Event shall
have occurred that, in the opinion of
the Lender, when taken together with
other ERISA Events that have occurred,
could reasonably be expected
to result in a Material Adverse Effect;
or
(l) any judgment or order
for the payment of money in excess of
$3,500,000.00 (after application of net
insurance proceeds, if any) in the
aggregate or that could
reasonably be expected to have a Material
Adverse Effect shall be rendered against the
Borrower, any Subsidiary Loan Party or any
Recourse Subsidiary, and either (i)
enforcement proceedings shall have been
commenced by any creditor upon such
judgment or order or (ii) there
shall be a period of 60 consecutive days
during which a stay of enforcement of
such judgment or order, by reason of a
pending appeal or otherwise, shall not
be in effect; or
(m) any non-monetary
judgment or order shall be rendered a
gainst the Borrower, any Subsidiary
Loan Party or any Recourse Subsidiary
that could reasonably be expected to
have a Material Adverse Effect, and
there shall be a period of 60 consecutive
days during which a stay of enforcement
of such judgment or order, by reason of
a pending appeal or otherwise, shall
not be in effect; or
(n) a Change in Control
shall occur or exist; or
(o) any provision of any
Subsidiary Guarantee Agreement shall for
any reason cease to be valid and binding
on, or enforceable against, any Subsidiary
Loan Party, or any Subsidiary Loan Party
shall so state in writing, or any
Subsidiary Loan Party shall seek to
terminate its Subsidiary Guarantee
Agreement;
then, and in every such event (other
than an event with respect to the
Borrower described in clause (h) or (i)
of this Section) and at any time
thereafter during the continuance of
such event, the Lender may, by notice
to the Borrower, take any or all of the
following actions, at the same or
different times: (i) terminate the
Revolving Commitment; (ii) terminate
the Term Commitment; (iii) declare the
principal of and any accrued interest
on the Loans, and all other Obligations
owing hereunder, to be, whereupon the
same shall become due and payable
<Page>
immediately, without presentment, demand,
protest or other notice of any kind,
all of which are hereby waived by the
Borrower; (iv) exercise all remedies
contained in any other Loan Document;
and (v) demand payment of an amount
equal to 100% of the aggregate
Available Amount under all outstanding
Letters of Credit, to be held by the
Lender as collateral for the Borrower's
reimbursement obligations; and that, if
an Event of Default specified in either
clause (h) or (i) shall occur, the
Commitments shall automatically terminate
and the principal of the Loans then
outstanding, together with accrued interest
thereon, an amount equal to the aggregate
Available Amount under all outstanding
Letters of Credit, and all fees, and all
other Obligations shall automatically
become due and payable, without presentment,
demand, protest or other notice of any kind,
all of which are hereby waived by the
Borrower.
ARTICLE 9
RESERVED
ARTICLE 10
MISCELLANEOUS
Section 10.1 Notices.
(a) Except in the case of
notices and other communications expressly
permitted to be given by telephone, all
notices and other communications to any
party herein to be effective shall be in
writing and shall be delivered by hand or
overnight courier service, mailed
by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Patriot Transportation
Holding, Inc.
200 W. Forsyth Street
7th Floor
Jacksonville, Florida
32202
Attention: John D.
Milton, Jr.,
Telecopy Number:
(904) ___-____
To the Lender: Wells Fargo Bank, N.A.
One Independent Drive
25th Floor
Jacksonville, Florida
32202
Attention: Linda D. Coley
Telephone No:
(904) 351-7304
Telecopy No: (904) 351-7293
<Page>
With a copy to: Charles V. Hedrick, Esq.
Foley & Lardner LLP
One Independent Drive
Suite 1300
Jacksonville, Florida
32202-5017
Telecopy Number:
(904) 359-8700
Any party hereto may change its address
or telecopy number for notices and other
communications hereunder by notice to the
other parties hereto. All such notices
and other communications shall, when
transmitted by overnight delivery, or
faxed, be effective when delivered for
overnight (next-day) delivery, or
transmitted in legible form by
facsimile machine, respectively, or if
mailed, upon the third Business Day
after the date deposited into the mails or
if delivered, upon delivery; provided,
that notices delivered to the Lender
shall not be effective until actually
received by such Person at its address
specified in this Section 10.1.
(b) Any agreement of the
Lender herein to receive certain notices by
telephone or facsimile is solely for the
convenience and at the request of the
Borrower. The Lender shall be entitled to
rely on the authority of any Person
purporting to be a Person authorized by
the Borrower to give such notice and the
Lender shall not have any liability to the
Borrower or other Person on account of
any action taken or not taken by the
Lender in reliance upon such telephonic
or facsimile notice. The obligation of
the Borrower to repay the Loans and
all other Obligations hereunder shall
not be affected in any way or to any
extent by any failure of the Lender to
receive written confirmation of any
telephonic or facsimile notice or the
receipt by the Lender of a confirmation
which is at variance with the terms
understood by the Lender to be
contained in any such telephonic or
facsimile notice.
Section 10.2 Waiver;
Amendments.
(a) No failure or delay
by the Lender in exercising any right
or power hereunder or any other Loan
Document, and no course of dealing
between the Borrower and the
Lender, shall operate as a waiver
thereof, nor shall any single or
partial exercise of any such right
or power or any abandonment or
discontinuance of steps to enforce
such right or power, preclude
any other or further exercise thereof
or the exercise of any other right or
power hereunder or thereunder. The
rights and remedies of the Lender
hereunder and under the other Loan
Documents are cumulative and are not
exclusive of any rights or remedies
provided by law. No waiver of any
provision of this Agreement or any
other Loan Document or consent to any
departure by the Borrower therefrom
shall in any event be effective
unless the same shall be
permitted by paragraph (b) of this
Section, and then such waiver or
consent shall be effective
only in the specific instance and
for the purpose for which given.
Without limiting the generality
of the foregoing, the making of a
Loan shall not be construed as a
waiver of any Default or
Event of Default, regardless of
whether the Lender may have had
notice or knowledge of such
Default or Event of Default at the
time.
(b) No amendment or
waiver of any provision of this
Agreement or the other Loan
Documents, nor consent to any
departure by the Borrower
therefrom, shall in any event be
effective unless the same shall
be in writing and signed by the
Borrower and the Lender and then
<Page>
such waiver or consent shall be
effective only in the specific
instance and for the specific purpose
for which given.
Section 10.3 Expenses;
Indemnification.
(a) The Borrower shall
pay (i) subject to the limitations
set forth in the Commitment Letter,
all reasonable, out-of-pocket costs
and expenses of the Lender and its
Affiliates, including the reasonable
fees, charges and disbursements of
counsel for the Lender and its
Affiliates, in connection with the
syndication of the credit facilities
provided for herein, the preparation
and administration of the Loan
Documents and any amendments,
modifications or waivers thereof
(whether or not the transactions
contemplated in this Agreement or
any other Loan Document shall be
consummated) and (ii) all reasonable
out-of-pocket costs and expenses
(including, without limitation, the
reasonable fees, charges and
disbursements of outside counsel
and the allocated cost of inside
counsel) incurred by the Lender in
connection with the enforcement or
protection of its rights in
connection with this Agreement,
including its rights under this
Section, or in connection with the
Loans made, including all such
out-of-pocket expenses incurred
during any workout, restructuring
or negotiations in respect of such
Loans.
(b) The Borrower shall
indemnify the Lender, and each
Related Party of the Lender (each,
an "Indemnitee") against, and hold
each of them harmless from, any and
all costs, losses, liabilities,
claims, damages and related expenses,
including the reasonable fees, charges
and disbursements of any counsel for
any Indemnitee, which may be incurred
by or asserted against any Indemnitee
arising out of, in connection with or
as a result of (i) the execution or
delivery of this Agreement or any
other agreement or instrument
contemplated hereby, the performance
by the parties hereto of their
respective obligations hereunder or
the consummation of any of the
transactions contemplated hereby,
(ii) any Loan or any actual or
proposed use of the proceeds
therefrom, (iii) any actual or
alleged presence or release of
Hazardous Materials on or
from any property owned by the
Borrower or any Subsidiary or any
Environmental Liability
related in any way to the Borrower
or any Subsidiary or (iv) any actual
or prospective claim, litigation,
investigation or proceeding relating
to any of the foregoing, whether
based on contract, tort or any other
theory and regardless of whether any
Indemnitee is a party thereto; provided,
that the Borrower shall not be
obligated to indemnify any Indemnitee
for any of the foregoing
arising out of such Indemnitee's gross
negligence or willful misconduct as
determined by a court
of competent jurisdiction in a final
and nonappealable judgment.
(c) The Borrower shall pay,
and hold the Lender harmless from and
against, any and all present and
future stamp, documentary, and other
similar taxes with respect to this
Agreement and any other Loan Documents,
any collateral described therein, or
any payments due thereunder, and save
the Lender harmless from and against
any and all liabilities with respect
to or resulting from any delay or
omission to pay such taxes.
(d) To the extent permitted
by applicable law, the Borrower shall
not assert, and hereby waives, any claim
against any Indemnitee, on any theory of
liability, for special, indirect,
consequential or punitive damages (as
opposed to actual or direct damages)
arising out of, in connection with or
as a result of, this Agreement or any
agreement or instrument contemplated
hereby, the transactions contemplated
therein, any Loan or the use of proceeds
thereof.
<Page>
(e) All amounts due under
this Section shall be payable promptly
after written demand therefor.
Section 10.4 Successors and
Assigns.
(a) The provisions of this
Agreement shall be binding upon and inure
to the benefit of the parties hereto and
their respective successors and assigns,
except that the Borrower may not assign
or transfer any of its rights hereunder
without the prior written consent of Lender
(and any attempted assignment or transfer
by the Borrower without such consent shall
be null and void).
(b) The Lender may at any time,
without the consent of the Borrower, sell
participations to one or more banks or
other entities (a "Participant") in all
or a portion of the Lender's rights and
obligations under this Agreement
(including all or a portion of the Revolving
Commitment, the Term Commitment and the
Loans owing to it); provided, that (i) the
Lender's obligations under this Agreement
shall remain unchanged, (ii) the Lender
shall remain solely responsible to the
other parties hereto for the performance
of its obligations hereunder, and (iii)
the Borrower shall continue to deal solely
and directly with the Lender in connection
with the Lender's rights and obligations
under this Agreement and the other Loan
Documents. Any agreement between the
Lender and the Participant with respect
to such participation shall
provide that the Lender shall retain the
sole right and responsibility to enforce
this Agreement and the other Loan Documents
and the right to approve any amendment,
modification or waiver of this Agreement
and the other Loan Documents; provided,
that such participation agreement
may provide that the Lender will not,
without the consent of the Participant,
agree to any amendment, modification or
waiver of this Agreement that would (i)
increase the Revolving Commitment or Term
Commitment of the Participant without the
written consent of such Participant, (ii)
reduce the principal amount of any Loan
or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without
the written consent of each Participant
affected thereby, (iii) postpone the date
fixed for any payment of any principal of,
or interest on, any Loan or interest thereon
or any fees hereunder or reduce the amount
of, waive or excuse any such payment, or
postpone the scheduled date for the
termination or reduction of any Commitment,
without the written consent of each
Participant affected thereby, (iv)
release any guarantor or
limit the liability of any such guarantor
under any guaranty agreement without the
written consent of such Participant; or
(v) release all or substantially all
collateral (if any) securing any of
the Obligations without the written
consent of such Participant. The Borrower
agrees that each Participant shall be
entitled to the benefits of Sections
2.16, 2.17, and 2.18 to the same extent as
if it were a Lender hereunder and had
acquired its interest by assignment
pursuant to paragraph (b); provided, that
no Participant shall be entitled to
receive any greater payment under Section
2.16 or 2.18 than the Lender would have
been entitled to receive with respect to
the participation sold to such Participant
unless the sale of such participation is
made with the Borrower's prior
written consent. To the extent
permitted by law, the Borrower agrees
that each Participant shall
be entitled to the benefits of Section
2.20 as though it were the Lender,
provided, that such Participant agrees
to share with the Lender the proceeds
thereof in accordance with Section 2.20
as fully as if it were the Lender
hereunder.
(c) The Lender may at any
time pledge or assign a security
interest in all or any portion of its
rights under this Agreement, the
Revolving Credit Note and any Term Notes
to
<Page>
secure its obligations to a Federal
Reserve Bank without complying with
this Section; provided, that no such
pledge or assignment shall release the
Lender from any of its obligations
hereunder or substitute any such
pledgee or assignee for the Lender
as a party hereto.
Section 10.5 Governing Law;
Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the
other Loan Documents shall be construed
in accordance with and be governed by
the law (without giving effect to the
conflict of law principles thereof) of
the State of Florida.
(b) The Borrower hereby
irrevocably and unconditionally
submits, for itself and its property,
to the non-exclusive jurisdiction of
the Circuit Court of Duval County,
Florida, the United States District
Court of the Middle District of Florida,
and of any state court of the
State of Florida and any appellate
court from any thereof, in any action
or proceeding arising out of or relating
to this Agreement or any other Loan
Document or the transactions contemplated
hereby or thereby, or for recognition
or enforcement of any judgment, and
each of the parties hereto hereby
irrevocably and unconditionally
agrees that all claims in respect
of any such action
or proceeding may be heard and
determined in such Florida state
court or, to the extent permitted by
applicable law, such Federal court.
Each of the parties hereto agrees
that a final judgment in any such
action or proceeding shall be
conclusive and may be enforced
in other jurisdictions by suit on
the judgment or in any other
manner provided by law. Nothing in
this Agreement or any other Loan
Document shall affect any right
that the Lender may otherwise
have to bring any action or
proceeding relating to this
Agreement or any other Loan
Document against the Borrower or
its properties in the courts of
any jurisdiction.
(c) The Borrower
irrevocably and unconditionally
waives any objection which
it may now or hereafter have to
the laying of venue of any such
suit, action or proceeding
described in paragraph (b) of this
Section and brought in any court
referred to in paragraph (b) of
this Section. Each of the parties
hereto irrevocably waives, to the
fullest extent permitted by
applicable law, the defense of an
inconvenient forum to the
maintenance of such action or
proceeding in any such court.
Section 10.6 ARBITRATION
Arbitration. The parties hereto agree,
upon demand by any party, to submit to
binding arbitration all claims, disputes
and controversies between or among them
(and their respective employees,
officers, directors, attorneys, and
other agents), whether in tort, contract
or otherwise in any way arising out
of or relating to (i) any credit subject
hereto, or any of the Loan Documents,
and their negotiation, execution,
collateralization, administration,
repayment, modification, extension,
substitution, formation,
inducement, enforcement, default or
termination; or (ii) requests for
additional credit.
(b) Governing Rules. Any
arbitration proceeding will (i) proceed
in a location in Florida selected by the
American Arbitration Association ("AAA");
(ii) be governed by the Federal
Arbitration Act (Title 9 of the
United States Code), notwithstanding
any conflicting choice of law provision
in any of the documents between the
parties; and (iii) be conducted by
the AAA, or such other administrator
as the parties shall mutually agree
upon, in accordance with the AAA's
commercial dispute resolution procedures,
unless the claim or counterclaim is at
least $1,000,000.00 exclusive of claimed
interest, arbitration fees and costs in
which case the
<Page>
arbitration shall be conducted in
accordance with the AAA's optional
procedures for large, complex commercial
disputes (the commercial dispute
resolution procedures or the optional
procedures for large, complex commercial
disputes to be referred to herein, as
applicable, as the "Rules"). If there is
any inconsistency between the terms
hereof and the Rules, the terms and
procedures set forth herein shall control.
Any party who fails or refuses to submit
to arbitration following a demand by any
other party shall bear all costs and
expenses incurred by such other
party in compelling arbitration of any
dispute. Nothing contained herein shall
be deemed to be a waiver by any party
that is a bank of the protections
afforded to it under 12 U.S.C. Section 91
or any similar applicable state law.
(c) No Waiver of Provisional
Remedies, Self-Help and Foreclosure. The
arbitration requirement does not limit
the right of any party to (i) foreclose
against real or personal property
collateral; (ii) exercise self-help
remedies relating to collateral or
proceeds of collateral such as setoff
or repossession; or (iii) obtain
provisional or ancillary remedies such as
replevin, injunctive relief, attachment
or the appointment of a receiver, before
during or after the pendency of any
arbitration proceeding. This exclusion
does not constitute a waiver of the right
or obligation of any party to submit any
dispute to arbitration or reference
hereunder, including those arising
from the exercise of the actions
detailed in sections (i), (ii) and (iii)
of this paragraph.
(d) Arbitrator
Qualifications and Powers. Any
arbitration proceeding in
which the amount in controversy is
$5,000,000.00 or less will be decided
by a single arbitrator
selected according to the Rules, and
who shall not render an award of greater
than $5,000,000.00. Any dispute in
which the amount in controversy exceeds
$5,000,000.00 shall be decided by
majority vote of a panel of three
arbitrators; provided however, that
all three arbitrators must actively
participate in all hearings and
deliberations. The arbitrator will be a
neutral attorney licensed in the State
of Florida or a neutral retired judge
of the state or federal judiciary of
Florida, in either case with a minimum
of ten years experience in the substantive
law applicable to the subject matter of
the dispute to be arbitrated. The
arbitrator will determine whether or not
an issue is arbitratable and will give
effect to the statutes of limitation in
determining any claim. In any
arbitration proceeding the arbitrator
will decide (by documents
only or with a hearing at the
arbitrator's discretion) any pre-hearing
motions which are similar to
motions to dismiss for failure to state
a claim or motions for summary
adjudication. The arbitrator shall
resolve all disputes in accordance
with the substantive law of Florida and
may grant any remedy or relief that a
court of such state could order or
grant within the scope hereof
and such ancillary relief as is
necessary to make effective any award.
The arbitrator shall also have the
power to award recovery of all costs
and fees, to impose sanctions and to
take such other action as the
arbitrator deems necessary to the
same extent a judge could pursuant
to the Federal Rules of Civil
Procedure, the Florida Rules of
Civil Procedure or other applicable
law. Judgment upon the award rendered
by the arbitrator may be entered in
any court having jurisdiction. The
institution and maintenance of an
action for judicial relief or pursuit
of a provisional or ancillary remedy
shall not constitute a waiver of the
right of any party, including
the plaintiff, to submit the
controversy or claim to arbitration
if any other party contests such
action for judicial relief.
(e) Discovery. In any
arbitration proceeding, discovery
will be permitted in accordance
with the Rules. All discovery shall
be expressly limited to matters directly
relevant
<Page>
to the dispute being arbitrated and
must be completed no later than 20
days before the hearing date.
Any requests for an extension of the
discovery periods, or any discovery
disputes, will be subject
to final determination by the
arbitrator upon a showing that the
request for discovery is essential
for the party's presentation and that
no alternative means for obtaining
information is available.
(f) Class Proceedings and
Consolidations. No party hereto shall
be entitled to join or consolidate
disputes by or against others in any
arbitration, except parties who have
executed any Loan Document, or to
include in any arbitration any dispute
as a representative or member of a
class, or to act in any arbitration
in the interest of the general public
or in a private attorney general
capacity.
(g) Payment Of Arbitration
Costs And Fees. The arbitrator shall
award all costs and expenses of the
arbitration proceeding.
(h) Miscellaneous. To the
maximum extent practicable, the AAA,
the arbitrators and the parties shall
take all action required to conclude
any arbitration proceeding within 180
days of the filing of the dispute with
the AAA. No arbitrator or other party
to an arbitration proceeding may
disclose the existence, content or
results thereof, except for
disclosures of information by a party
required in the ordinary course of its
business or by applicable law or
regulation. If more than one
agreement for arbitration by or
between the parties potentially
applies to a dispute, the
arbitration provision most directly
related to the Loan Documents or
the subject matter of the dispute
shall control. This arbitration
provision shall survive termination,
amendment or expiration of any of
the Loan Documents or any
relationship between the parties.
Section 10.7 Right of
Setoff. In addition to any rights
now or hereafter granted under
applicable law and not by way of
limitation of any such rights,
the Lender shall have the right,
at any time or from time to time
upon the occurrence and during the
continuance of an Event of Default,
without prior notice to the Borrower,
any such notice being expressly waived
by the Borrower to the extent permitted
by applicable law, to set off and apply
against all deposits (general or
special, time or demand, provisional
or final) of the Borrower at any time
held or other obligations at any time
owing by the Lender to or for the
credit or the account of the Borrower
against any and all Obligations held
by the Lender, irrespective of whether the
Lender shall have made demand hereunder
and although such Obligations may be
unmatured. the Lender agrees promptly
to notify the Borrower after any such
set off and any application made by the
Lender; provided, that the failure to
give such notice shall not affect the
validity of such set-off and application.
Section 10.8 Counterparts;
Integration. This Agreement may be executed
by one or more of the parties to this
Agreement on any number of separate
counterparts (including by telecopy),
and all of said counterparts taken
together shall be deemed to constitute
one and the same instrument. This
Agreement, the other Loan Documents,
and any separate letter agreement(s)
relating to any fees payable to the
Lender constitute the entire agreement
among the parties hereto and thereto
regarding the subject matters hereof
and thereof and supersede all prior
agreements and understandings, oral or
written, regarding such subject matters.
<Page>
Section 10.9 Survival. All
covenants, agreements, representations
and warranties made by the Borrower
herein and in the certificates or other
instruments delivered in connection with
or pursuant to this Agreement shall be
considered to have been relied upon by
the other parties hereto and shall survive
the execution and delivery of this Agreement
and the making of any Loans, regardless of
any investigation made by any such other
party or on its behalf and notwithstanding
that the Lender may have had notice or
knowledge of any Default or incorrect
representation or warranty at the time any
credit is extended hereunder, and shall
continue in full force and effect as long
as the principal of or any accrued interest
on any Loan or any fee or any other amount
payable under this Agreement is outstanding
and unpaid and so long as the Commitments
have not expired or terminated. The
provisions of Sections 2.17, 2.18, 2.19
and 10.3 shall survive and remain in full
force and effect regardless of the
consummation of the transactions
contemplated hereby, the repayment of
the Loans, the expiration or termination of
the Revolving Commitment or the Term
Commitment or the termination of this
Agreement or any provision hereof.
All representations and warranties made
herein, in the certificates, reports,
notices, and other documents delivered
pursuant to this Agreement shall survive
the execution and delivery of this
Agreement and the other Loan Documents,
and the making of the Loans.
Section 10.10 Severability.
Any provision of this Agreement or any
other Loan Document held to be illegal,
invalid or unenforceable in any
jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent
of such illegality, invalidity or
unenforceability without affecting the
legality, validity or enforceability of
the remaining provisions hereof or thereof;
and the illegality, invalidity or
unenforceability of a particular provision
in a particular jurisdiction shall not
invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11 Confidentiality.
The Lender agrees to take normal and
reasonable precautions to maintain the
confidentiality of any information
designated in writing as confidential
and provided to it by the Borrower or
any Subsidiary, except that such information
may be disclosed (i) to any Related Party of
the Lender, including without limitation
accountants, legal counsel and other
advisors, (ii) to the extent required by
applicable laws or regulations or by any
subpoena or similar legal process, (iii)
to the extent requested by any
regulatory agency or authority, (iv) to
the extent that such information becomes
publicly available other than as a result
of a breach of this Section, or which
becomes available to the Lender or any
Related Party of any of the foregoing on
a nonconfidential basis from a source
other than the Borrower, (v) in connection
with the exercise of any remedy hereunder
or any suit, action or proceeding relating
to this Agreement or the enforcement of
rights hereunder, and subject to
provisions substantially similar to this
Section 10.11, to any actual or prospective
assignee or Participant, or (vi) with the
consent of the Borrower. Any Person
required to maintain the confidentiality
of any information as provided for in this
Section shall be considered to have
complied with its obligation to do so if
such Person has exercised the same degree
of care to maintain the confidentiality of
such information as such Person would
accord its own confidential information.
Section 10.12 Interest Rate
Limitation. Notwithstanding anything
herein to the contrary, if at any time
the interest rate applicable to any Loan,
together with all fees, charges
and other amounts which may be treated
as interest on such Loan under applicable
law (collectively, the "Charges"), shall
exceed the maximum lawful rate of interest
(the "Maximum Rate") which may be contracted
for, charged, taken, received or reserved
by the Lender in
<Page>
accordance with applicable law, the rate
of interest payable in respect of such
Loan hereunder, together with all Charges
payable in respect thereof, shall be
limited to the Maximum Rate and, to the
extent lawful, the interest and Charges
that would have been payable in respect
of such Loan but were not payable as a
result of the operation of this Section
shall be cumulated and the interest and
Charges payable to the Lender in respect
of other Loans or periods shall be increased
(but not above the Maximum Rate therefor)
until such cumulated amount, together with
interest thereon at the Federal Funds Rate
to the date of repayment, shall have been
received by the Lender.
Section 10.13 US PATRIOT
Act Notice. Notwithstanding anything
herein to the contrary, Lender hereby
notifies the Borrower that, pursuant to
the requirements of Title III
of the Uniting and Strengthening America
by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA
PATRIOT Act) Act of 2001 (Public Law 107-56,
signed into law October 26, 2001) and
regulations promulgated thereunder
(collectively, the "Patriot Act"),
Lender is required to obtain, verify and
record information that identifies the Loan
Parties, including without limitation the
name, address and identification number of
each Loan Party.
[Remainder of Page Intentionally Left Blank]
<Page>
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to
be duly executed, under seal in the case
of the Borrower, by their respective
authorized officers as of the
day and year first above written.
PATRIOT TRANSPORTATION
HOLDING, INC.
By:
Print Name: John D. Milton, Jr.
Title: Vice President and
Chief Financial Officer
WELLS FARGO BANK, N.A.
By:
Print Name: Charles N. Kauffman
Title: Senior Vice President
<Page>
ACKNOWLEDGMENT OF BORROWER
STATE OF GEORGIA
COUNTY OF CAMDEN
On this the 21st day of December,
2012, personally appeared John D. Milton,
as the Vice President and Chief Financial
Officer of Patriot Transportation Holding,
Inc., a Florida corporation (the "Borrower"),
and before me, executed the foregoing 2012
Amended and Restated Credit Agreement dated
as of December 21, 2012 between the Borrower
and Wells Fargo Bank, N.A. on behalf of
such corporation.
IN WITNESS WHEREOF, I have hereunto
set my hand and official seal.
------------------------------------
Signature of Notary Public, State of
----------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
____ Personally known ; OR
____ Produced identification
Type of identification produced:_________
(Notary Seal)
<Page>
ACKNOWLEDGMENT OF WELLS FARGO BANK, N.A.
STATE OF GEORGIA
COUNTY OF CAMDEN
On this the 21st day of December,
2012, personally appeared Charles N.
Kauffman, as the Senior Vice President of
Wells Fargo Bank, N.A., a national banking
association, and before me, executed the
foregoing 2012 Amended and Restated Credit
Agreement dated as of December 21, 2012,
between the Borrower and Wells Fargo Bank,
N.A., on behalf of such national banking
association.
IN WITNESS WHEREOF, I have hereunto
set my hand and official seal.
-----------------------------
Signature of Notary Public,
State and County Aforesaid
---------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
____ Personally known ; OR
____ Produced identification
Type of identification produced:_____
(Notary Seal)
<Page>
SCHEDULE 4.5
ENVIRONMENTAL MATTERS
Table intentionally omitted
<Page>
SCHEDULE 4.14
Patriot Transportation Holding, Inc.
Subsidiaries
As of December 20, 2012
<Page>
Table intentionally omitted
<Page>
SCHEDULE 7.4
EXISTING INVESTMENTS
Table intentionally omitted
<Page>
EXHIBIT A
RENEWAL REVOLVING CREDIT NOTE
$40,000,000.00 St. Mary's, Georgia
December __, 2012
FOR VALUE RECEIVED, the
undersigned, PATRIOT TRANSPORTATION
HOLDING, INC., a Florida corporation
(the "Borrower"), hereby promises to
pay to Wells Fargo Bank, N.A. (the
"Lender") or its registered assigns,
at the office of Lender at One
Independent Drive, 25th Floor,
Jacksonville, Florida 32202, on the
Commitment Termination Date (as
defined in the 2012 Amended and
Restated Credit Agreement of even
date herewith (as the same may be
amended, supplemented or otherwise
modified from time to time, the
"Credit Agreement")), between the
Borrower and the Lender, the lesser
of the principal sum of Forty Million
and No/100 Dollars ($40,000,000.00)
and the aggregate unpaid principal
amount of all Revolving Loans made
by the Lender to the Borrower pursuant
to the Credit Agreement, in lawful
money of the United States of America
in immediately available funds, and to
pay interest from the date hereof on the
principal amount thereof from time to
time outstanding, in like funds, at said
office, at the rate or rates per annum
and payable on such dates as provided in
the Credit Agreement. In addition,
should legal action or an attorney-at-
law be utilized to collect any amount
due hereunder, the Borrower further
promises to pay all costs of collection,
including the reasonable attorneys'
fees of the Lender.
The Borrower promises to pay
interest, on demand, on any overdue
principal and, to the extent permitted by
law, overdue interest from their due dates
at a rate or rates provided in the
Credit Agreement.
This Note is issued in connection
with, and is entitled to the benefits of,
the Credit Agreement which, among
other things, contains provisions for
the acceleration of the maturity
hereof upon the happening of certain events,
for prepayment of the principal hereof prior
to the maturity hereof and for the
amendment or waiver of certain provisions
of the Credit Agreement, all upon the terms
and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF FLORIDA AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
This Note renews, modifies and
increases the Revolving Credit Note
dated December 10, 2004, and shall
continue to represent amounts currently
outstanding under such earlier note.
PATRIOT TRANSPORTATION
HOLDING, INC.
By:______________________
Name: ___________________
Title: __________________
<Page>
AFFIDAVIT OF OUT-OF-STATE DELIVERY
STATE OF GEORGIA
COUNTY OF CAMDEN
Before me this day personally
appeared ______________________________
(the "Borrower's Agent"), _______________
[title or capacity] of Patriot Transportation
Holding, Inc. (the "Borrower") and
___________________________ the _____________
of Wells Fargo Bank, N.A. (the "Bank's Agent"),
a duly authorized agent of Wells Fargo Bank,
N.A., who being by me first duly sworn,
depose(s) and say(s):
1. That on the date hereof the
Borrower's Agent executed the following
documents on behalf of the Borrower
(collectively, the "Documents") in the State
of Georgia:
(a) That certain Renewal Revolving
Credit Note in the stated principal amount of
$40,000,000 dated December __, 2012, made
payable by Borrower to Wells Fargo Bank, N.A.
(the "Lender") and (b) that certain 2012
Amended and Restated Credit Agreement dated
December __, 2012 between Borrower and
Lender.
2. That the Borrower's Agent
personally delivered the Documents to the
Bank's Agent and the Bank's Agent as agent
of the Lender, accepted the Documents on the
date hereof in the State of Georgia.
FURTHER AFFIANTS SAYETH NOT.
BORROWER'S AGENT: ________________________
_________________________
[name of Borrower's Agent]
BANK'S AGENT: _________________________
_________________________
[name of Bank's Agent]
Sworn to and subscribed before me this
____ day of December, 2012, at _________,
Georgia.
________________________
Notary Public, State and
County Aforesaid
My Commission No.:
My Commission Expires:
<Page>
EXHIBIT B
FORM OF TERM NOTE
$_____________ St. Mary's, Georgia
________ __, 20__
FOR VALUE RECEIVED, the
undersigned, PATRIOT TRANSPORTATION
HOLDING, INC., a Florida corporation
(the "Borrower"), hereby promises to pay
to Wells Fargo Bank, N.A. (the "Lender")
or its registered assigns, at the office
of Lender at One Independent Drive, 25th
Floor, Jacksonville, Florida 32202, on
the Commitment Termination Date (as defined
in the 2012 Amended and Restated Credit
Agreement of even date herewith (as the
same may be amended, supplemented or
otherwise modified from time to time, the
"Credit Agreement")), between the Borrower
and the Lender, the principal sum of
_____________ and No/100 Dollars
($__,___,___.00), in lawful money of
the United States of America in
immediately available funds, and to
pay interest from the date hereof on
the principal amount thereof from time
to time outstanding, in like funds, at
said office, at the rate or rates per
annum and payable on such dates as
provided in the Credit Agreement. In
addition, should legal action or an
attorney-at-law be utilized to collect
any amount due hereunder, the Borrower
further promises to pay all costs of
collection, including the reasonable
attorneys' fees of the Lender.
The Borrower promises to pay
interest, on demand, on any overdue
principal and, to the extent permitted
by law, overdue interest from their
due dates at a rate or rates provided
in the Credit Agreement.
This Note is issued in connection
with, and is entitled to the benefits of,
the Credit Agreement which, among other
things, contains provisions for the
acceleration of the maturity hereof upon
the happening of certain events, for
prepayment of the principal hereof
prior to the maturity hereof and for
the amendment or waiver of certain
provisions of the Credit Agreement,
all upon the terms and conditions
therein specified. THIS TERM NOTE
SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE
STATE OF FLORIDA AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
PATRIOT TRANSPORTATION
HOLDING, INC.
By:___________________
Name:_________________
Title:________________
<Page>
[FORM OF]
AFFIDAVIT OF OUT-OF-STATE DELIVERY
STATE OF GEORGIA
COUNTY OF CAMDEN
Before me this day personally
appeared ______________________________
(the
"Borrower's Agent"), _______________
[title or capacity] of Patriot
Transportation Holding,
Inc. (the "Borrower") and
___________________________ the
_____________ of Wells Fargo
Bank, N.A. (the "Bank's Agent"),
a duly authorized agent of Wells
Fargo Bank, N.A., who being by me
first duly sworn, depose(s) and say(s):
1. That on the date
hereof the Borrower's Agent executed
the following documents on behalf of
the Borrower (collectively, the
"Documents") in the State of Georgia:
(a) That certain Term Note
in the stated principal amount of
$__,___,___ dated __________ __, 20__,
made payable by Borrower to Wells Fargo
Bank, N.A. (the "Lender").
2. That the Borrower's
Agent personally delivered the
Documents to the Bank's Agent and the
Bank's Agent as agent of the Lender,
accepted the Documents on the date
hereof in the State of Georgia.
FURTHER AFFIANTS SAYETH NOT.
BORROWER'S AGENT:_____________
_____________
[name of Borrower's Agent]
BANK'S AGENT:_________________
_________________
[name of Bank's Agent]
Sworn to and subscribed before me
this ____ day of __________, 20__,
at ________________, Georgia.
____________________________
Notary Public, State and
County Aforesaid
My Commission No.:__________
My Commission Expires:______
<Page>
EXHIBIT C
[FORM OF]
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT
dated as of ___________, 2012, among
each of the Subsidiaries listed on
Schedule I hereto (each such subsidiary
individually, a "Guarantor" and
collectively, the "Guarantors") of
PATRIOT TRANSPORTATION HOLDING, INC.,
a Florida corporation (the "Borrower"),
and WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking
association (the "Lender") as
administrative agent (the "Administrative
Agent") for the Lenders (as defined in
the Credit Agreement referred to below).
Reference is made to the 2012
Amended and Restated Credit Agreement
of even date herewith (as amended,
supplemented or otherwise modified
from time to time, the "Credit Agreement"),
between the Borrower and the Lender.
Capitalized terms used herein and not
defined herein shall have the meanings
assigned to such terms in the Credit
Agreement.
The Lender has agreed to make
Loans to the Borrower, pursuant to,
and upon the terms and subject to the
conditions specified in, the Credit
Agreement. Each of the Guarantors is a
direct or indirect wholly-owned
Subsidiary of the Borrower, and part of
a common economic enterprise, and
acknowledges that it will derive
substantial benefit from the making
of the Loans by the Lenders because
advances thereunder will be used for
working capital, capital expenditure
and other general corporate purposes
of the Guarantors and will benefit the
consolidated group. The obligation of
the Lender to make Loans is conditioned
on, among other things, the execution
and delivery by the Guarantors of a
Subsidiary Guarantee Agreement in the
form hereof. As consideration therefor
and in order to induce the Lender to
make Loans, the Guarantors are willing
to execute this Subsidiary Guarantee
Agreement.
Accordingly, the parties hereto
agree as follows:
Section 1. Guarantee. Each
Guarantor unconditionally guarantees,
jointly with the other Guarantors and
severally, (a) the due and punctual
payment of (i) the principal of and
premium, if any, and interest (including
interest accruing during the pendency of
any bankruptcy, insolvency, receivership
or other similar proceeding, regardless
of whether allowed or allowable in such
proceeding) on the Loans, when and as
due, whether at maturity, by acceleration,
upon one or more dates set for prepayment
or otherwise and (ii) all other monetary
obligations, including fees, costs,
expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or
otherwise (including monetary obligations
incurred during the pendency of any
bankruptcy, insolvency, receivership or
other similar proceeding, regardless of
whether allowed or allowable in such
proceeding), of the Loan Parties to
the Lender under the Credit Agreement
and the other Loan Documents, (b) the
due and punctual performance of all
covenants, agreements, obligations and
liabilities of the Loan Parties under
or pursuant to the Credit Agreement and
the other Loan Documents; and (c) the
due and punctual payment and
performance of all obligations of the
Borrower, monetary or otherwise, under
each Hedging
<Page>
Agreement entered into with a counterparty
that was the Lender or an Affiliate of a
Lender at the time such Hedging Agreement
was entered into (all the monetary and
other obligations referred to in the
preceding clauses (a) through (c) being
collectively called the "Obligations").
Each Guarantor further agrees that the
Obligations may be extended or renewed,
in whole or in part, without notice to
or further assent from it, and that it
will remain bound upon its guarantee
notwithstanding any extension or renewal
of any Obligation.
Section 2. Obligations
Not Waived. To the fullest extent
permitted by applicable law, each
Guarantor waives presentment to, demand
of payment from and protest to the
Borrower of any of the Obligations, and
also waives notice of acceptance of its
guarantee and notice of protest for
nonpayment. To the fullest extent
permitted by applicable law, the
obligations of each Guarantor hereunder
shall not be affected by (a) the failure
of the Lender to assert any claim or
demand or to enforce or exercise any
right or remedy against the Borrower or
any other Guarantor under the provisions
of the Credit Agreement, any other Loan
Document or otherwise, (b) any rescission,
waiver, amendment or modification of, or
any release from any of the terms or
provisions of, this Agreement, any other
Loan Document, any Guarantee or any
other agreement, including with respect
to any other Guarantor under this
Agreement, or (c) the failure to perfect
any security interest in, or the
release of, any of the security held
by or on behalf of the Lender.
Section 3. Guarantee of
Payment. Each Guarantor further agrees
that its guarantee constitutes a
guarantee of payment when due and
not of collection, and waives any
right to require that any resort be
had by the Lender to any of the
security held for payment of the
Obligations or to any balance of
any deposit account or credit on
the books of the Lender in
favor of the Borrower or any other
person.
Section 4. No Discharge
or Diminishment of Guarantee. The
obligations of each Guarantor hereunder
shall not be subject to any reduction,
limitation, impairment or termination
for any reason (other than the
indefeasible payment in full in cash
of the Obligations), including
any claim of waiver, release, surrender,
alteration or compromise of any of the
Obligations, and shall not be subject
to any defense or setoff, counterclaim,
recoupment or termination whatsoever
by reason of the invalidity, illegality
or unenforceability of the Obligations
or otherwise. Without limiting the
generality of the foregoing, the
obligations of each Guarantor hereunder
shall not be discharged or impaired
or otherwise affected by the failure
of the Lender to assert any claim or
demand or to enforce any remedy under
the Credit Agreement, any other Loan
Document or any other agreement, by
any waiver or modification of any
provision of any thereof, by any default,
failure or delay, willful or otherwise,
in the performance of the Obligations,
or by any other act or
omission that may or might in any
manner or to the extent vary the
risk of any Guarantor or that
would otherwise operate as a
discharge of each Guarantor as a
matter of law or equity (other than
the indefeasible payment in full in
cash of all the Obligations).
Section 5. Defenses of
Borrower Waived. To the fullest
extent permitted by applicable law,
each Guarantor waives any defense
based on or arising out of any
defense of the Borrower or the
unenforceability of the Obligations
or any part thereof from any cause,
or the cessation from any cause of
the liability of the Borrower, other
than the final and indefeasible
payment in full in cash of the
Obligations. The Lender may, at
their election, foreclose on any
<Page>
security held by one or more of them
by one or more judicial or nonjudicial
sales, accept an assignment of any such
security in lieu of foreclosure,
compromise or adjust any part of the
Obligations, make any other accommodation
with the Borrower or any other guarantor,
without affecting or impairing in any way
the liability of any Guarantor hereunder
except to the extent the Obligations
have been fully, finally and
indefeasibly paid in cash. Pursuant to
applicable law, each Guarantor waives any
defense arising out of any such election
even though such election operates,
pursuant to applicable law, to impair or
to extinguish any right of reimbursement or
subrogation or other right or remedy of
such Guarantor against the Borrower or any
other Guarantor or guarantor, as the case
may be, or any security.
Section 6. Agreement to Pay;
Subordination. In furtherance of the
foregoing and not in limitation of any
other right that the Lender has at law or
in equity against any Guarantor by
virtue hereof, upon the failure of the
Borrower or any other Loan Party to pay
any Obligation when and as the same shall
become due, whether at maturity, by
acceleration, after notice of prepayment
or otherwise, each Guarantor hereby
promises to and will forthwith pay, or
cause to be paid, to the Lender in cash
the amount of such unpaid Obligations.
Upon payment by any Guarantor of any sums
to the Lender, all rights of such
Guarantor against the Borrower arising as
a result thereof by way of right of
subrogation, contribution, reimbursement,
indemnity or otherwise shall in all
respects be subordinate and junior in
right of payment to the prior indefeasible
payment in full in cash of all the
Obligations. In addition, any indebtedness
of the Borrower now or hereafter held by
any Guarantor is hereby subordinated in
right of payment to the prior payment in
full in cash of the Obligations. If any
amount shall erroneously be paid to
any Guarantor on account of (i) such
subrogation, contribution, reimbursement,
indemnity or similar right or (ii) any
such indebtedness of the Borrower, such
amount shall be held in trust for the
benefit of the Lender and shall forthwith
be paid to the Lender to be credited
against the payment of the Obligations,
whether matured or unmatured, in accordance
with the terms of the Loan Documents.
Section 7. Information.
Each Guarantor assumes all responsibility
for being and keeping itself informed of
the Borrower's financial condition and
assets, and of all other circumstances
bearing upon the risk of nonpayment of
the Obligations and the nature, scope and
extent of the risks that such Guarantor
assumes and incurs hereunder, and agrees
that the Lender will have no duty to
advise any of the Guarantors of
information known to it or any of them
regarding such circumstances or risks.
Section 8. Representations
and Warranties. Each Guarantor represents
and warrants as to itself that all
representations and warranties relating
to it (as a Subsidiary of the Borrower)
contained in the Credit Agreement are true
and correct.
Section 9. Termination.
The guarantees made hereunder (a) shall
terminate when all the Obligations have
been paid in full in cash and the Lender
has no further commitment to lend
under the Credit Agreement and (b)
shall continue to be effective or be
reinstated, as the case may be, if at
any time payment, or any part thereof,
of any Obligation is rescinded or must
otherwise be restored by any Lender or
any Guarantor upon the bankruptcy or
reorganization of the Borrower, any
Guarantor or otherwise. In connection
with the foregoing, the Lender shall
execute and deliver to such Guarantor
or Guarantor's designee, at such
Guarantor's expense, any
<Page>
documents or instruments which such
Guarantor shall reasonably request
from time to time to evidence such
termination and release.
Section 10. Binding
Effect; Several Agreement; Assignments.
Whenever in this Agreement any of the
parties hereto is referred to, such
reference shall be deemed to include the
successors and assigns of such party;
and all covenants, promises and agreements
by or on behalf of the Guarantors that
are contained in this Agreement shall
bind and inure to the benefit of each
party hereto and their respective
successors and assigns. This Agreement
shall become effective as to any Guarantor
when a counterpart hereof executed on
behalf of such Guarantor shall have
been delivered to the Lender, and a
counterpart hereof shall have been
executed on behalf of the Lender, and
thereafter shall be binding upon such
Guarantor and the Lender and their
respective successors and assigns, and
shall inure to the benefit of such
Guarantor, and the Lender, and
their respective successors and
assigns, except that no Guarantor
shall have the right to assign its
rights or obligations hereunder or
any interest herein (and any such
attempted assignment shall be void).
If all of the capital stock of a
Guarantor is sold, transferred or
otherwise disposed of pursuant to a
transaction permitted by the Credit
Agreement, such Guarantor shall be
released from its obligations under
this Agreement without further
action. This Agreement shall be
construed as a separate agreement
with respect to each Guarantor
and may be amended, modified,
supplemented, waived or released
with respect to any Guarantor
without the approval of any other
Guarantor and without affecting the
obligations of any other Guarantor
hereunder.
Section 11. Waivers;
Amendment.
(a) No failure or delay
of the Lender in exercising any
power or right hereunder shall operate
as a waiver thereof, nor shall any
single or partial exercise of any such
right or power, or any abandonment or
discontinuance of steps to enforce
such a right or power, preclude any
other or further exercise thereof or
the exercise of any other right or
power. The rights of the Lender
hereunder and under the other Loan
Documents are cumulative and are not
exclusive of any rights or remedies
that they would otherwise have. No
waiver of any provision of this
Agreement or consent to any departure
by any Guarantor therefrom shall in
any event be effective unless the
same shall be permitted by paragraph
(b) below, and then such waiver and
consent shall be effective only in
the specific instance and for the
purpose for which given. No
notice or demand on any Guarantor
in any case shall entitle such
Guarantor to any other or
further notice in similar or other
circumstances.
(b) Neither this Agreement
nor any provision hereof may be waived,
amended or modified except pursuant to
a written agreement entered into
between the Guarantors with respect
to which such waiver, amendment or
modification relates and the Lender.
Section 12. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF FLORIDA.
Section 13. Notices. All
communications and notices hereunder
shall be in writing and given as provided
in Section 10.1 of the Credit Agreement.
All communications and notices hereunder to
each Guarantor shall be given to it at its
address set forth on Schedule I attached
hereto.
<Page>
Section 14. Survival of
Agreement; Severability.
(a) All covenants,
agreements representations and
warranties made by the Guarantors
herein and in the certificates or other
instruments prepared or delivered in
connection with or pursuant to this
Agreement or the other Loan Documents
shall be considered to have been relied
upon by the Lender and shall survive
the making by the Lender of the Loans
regardless of any investigation made
by any of them or on their behalf,
and shall continue in full force and
effect as long as the principal of or
any accrued interest on any Loan or
any other fee or amount payable under
this Agreement or any other Loan
Document is outstanding and unpaid
and as long as the Commitments have
not been terminated.
(b) In the event one or
more of the provisions contained in
this Agreement or in any other Loan
Document should be held invalid,
illegal or unenforceable in any
respect, the validity, legality and
enforceability of the remaining
provisions contained herein and
therein shall not in any way be
affected or impaired thereby (it
being understood that the invalidity
of a particular provision in a particular
jurisdiction shall not in and of itself
affect the validity of such provision
in any other jurisdiction). The parties
shall endeavor in good-faith negotiations
to replace the invalid, illegal or
unenforceable provisions with valid
provisions the economic effect
of which comes as close as possible
to that of the invalid, illegal or
unenforceable provisions.
Section 15. Counterparts.
This Agreement may be executed in
counterparts, each of which shall
constitute an original, but all of
which when taken together shall
constitute a single contract (subject
to Section 10), and shall become
effective as provided in Section 10.
Delivery of an executed signature
page to this Agreement by facsimile
transmission shall be as effective as
delivery of a manually executed
counterpart of this Agreement.
Section 16. Rules of
Interpretation. The rules of
interpretation specified in Section 1.4
of the Credit Agreement shall be
applicable to this Agreement.
Section 17. Jurisdiction;
Consent to Service of Process.
(a) Each Guarantor hereby
irrevocably and unconditionally submits,
for itself and its property, to the
nonexclusive jurisdiction of the Circuit
Court of Duval County, Florida, or any
Florida State court or Federal court of
the United States of America sitting in
Duval County, Florida, and any appellate
court from any thereof, in any action or
proceeding arising out of or relating to
this Agreement or the other Loan Documents,
or for recognition or enforcement of any
judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees
that all claims in respect of any such
action or proceeding may be heard and
determined in such Duval County, Florida
State court or, to the extent permitted
by law, in such Federal court. Each
of the parties hereto agrees that a final
judgment in any such action or proceeding
shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment
or in any other manner provided by law.
Nothing in this Agreement shall affect
any right that the Lender may otherwise
have to bring any action or proceeding
relating to this Agreement or the other
Loan Documents against any Guarantor or
its properties in the courts of any
jurisdiction.
<Page>
(b) Each Guarantor hereby
irrevocably and unconditionally waives,
to the fullest extent it may legally and
effectively do so, any objection that it
may now or hereafter have to the laying
of venue of any suit, action or proceeding
arising out of or relating to this Agreement
or the other Loan Documents in the Circuit
Court of Duval County, Florida or any
other appropriate Florida State or Federal
court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent
permitted by law, the defense of an
inconvenient forum to the maintenance of
such action or proceeding in any such court.
Section 18. Arbitration.
(a) Arbitration. The parties
hereto agree, upon demand by any party, to
submit to binding arbitration all claims,
disputes and controversies between or among
them (and their respective employees, officers,
directors, attorneys, and other agents), whether
in tort, contract or otherwise in any way
arising out of or relating to (i) any credit
subject hereto, or any of the Loan Documents,
and their negotiation, execution,
collateralization, administration,
repayment, modification, extension,
substitution, formation, inducement,
enforcement, default or termination; or
(ii) requests for additional credit.
(b) Governing Rules. Any
arbitration proceeding will (i) proceed
in a location in Florida selected by the
American Arbitration Association ("AAA");
(ii) be governed by the Federal Arbitration
Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of
law provision in any of the documents
between the parties; and (iii) be conducted
by the AAA, or such other administrator as
the parties shall mutually agree upon, in
accordance with the AAA's commercial dispute
resolution procedures, unless the claim or
counterclaim is at least $1,000,000.00
exclusive of claimed interest, arbitration
fees and costs in which case the arbitration
shall be conducted in accordance with the
AAA's optional procedures for large,
complex commercial disputes (the commercial
dispute resolution procedures or the optional
procedures for large, complex commercial
disputes to be referred to herein, as
applicable, as the "Rules"). If there is
any inconsistency between the terms hereof
and the Rules, the terms and procedures set
forth herein shall control. Any party who
fails or refuses to submit to arbitration
following a demand by any other party shall
bear all costs and expenses incurred by such
other party in compelling arbitration of any
dispute. Nothing contained herein shall be
deemed to be a waiver by any party that is
a bank of the protections afforded to it
under 12 U.S.C. Section 91 or any similar
applicable state law.
(c) No Waiver of Provisional
Remedies, Self-Help and Foreclosure. The
arbitration requirement does not limit the
right of any party to (i) foreclose against
real or personal property collateral; (ii)
exercise self-help remedies relating to
collateral or proceeds of collateral such
as setoff or repossession; or (iii)
obtain provisional or ancillary remedies
such as replevin, injunctive relief,
attachment or the appointment of a
receiver, before during or after the
pendency of any arbitration proceeding.
This exclusion does not constitute a
waiver of the right or obligation of any
party to submit any dispute to arbitration
or reference hereunder, including
those arising from the exercise of
the actions detailed in sections (i),
(ii) and (iii) of this paragraph.
(d) Arbitrator
Qualifications and Powers. Any
arbitration proceeding in which the
amount in controversy is $5,000,000.00
or less will be decided by a single
arbitrator
<Page>
selected according to the Rules, and
who shall not render an award of greater
than $5,000,000.00. Any dispute in which
the amount in controversy exceeds
$5,000,000.00 shall be decided by
majority vote of a panel of three
arbitrators; provided however, that
all three arbitrators must actively
participate in all hearings and
deliberations. The arbitrator will
be a neutral attorney licensed in the
State of Florida or a neutral retired
judge of the state or federal judiciary
of Florida, in either case with a
minimum of ten years experience in
the substantive law applicable to the
subject matter of the dispute to be
arbitrated. The arbitrator will determine
whether or not an issue is arbitratable
and will give effect to the statutes
of limitation in determining any claim.
In any arbitration proceeding the
arbitrator will decide (by documents
only or with a hearing at the
arbitrator's discretion) any pre-
hearing motions which are similar to
motions to dismiss for failure to
state a claim or motions for summary
adjudication. The arbitrator shall
resolve all disputes in accordance
with the substantive law of Florida
and may grant any remedy or relief
that a court of such state could
order or grant within the scope hereof
and such ancillary relief as is
necessary to make effective any award.
The arbitrator shall also have the
power to award recovery of all costs
and fees, to impose sanctions and to
take such other action as the
arbitrator deems necessary to the
same extent a judge could pursuant to the
Federal Rules of Civil Procedure,
the Florida Rules of Civil Procedure
or other applicable law. Judgment
upon the award rendered by the
arbitrator may be entered in any
court having jurisdiction. The
institution and maintenance of an
action for judicial relief or
pursuit of a provisional or ancillary
remedy shall not constitute a waiver
of the right of any party, including
the plaintiff, to submit the
controversy or claim to arbitration
if any other party contests such
action for judicial relief.
(e) Discovery. In any
arbitration proceeding, discovery
will be permitted in accordance with
the Rules. All discovery shall be
expressly limited to matters directly
relevant to the dispute being
arbitrated and must be completed
no later than 20 days before the
hearing date. Any requests for an
extension of the discovery periods,
or any discovery disputes, will be
subject to final determination by
the arbitrator upon a showing that
the request for discovery is essential
for the party's presentation and
that no alternative means for
obtaining information is available.
(f) Class Proceedings
and Consolidations. No party hereto
shall be entitled to join or consolidate
disputes by or against others in any
arbitration, except parties who have
executed any Loan Document, or to
include in any arbitration any
dispute as a representative or
member of a class, or to act in
any arbitration in the interest
of the general public or in a private
attorney general capacity.
(g) Payment Of
Arbitration Costs And Fees.
The arbitrator shall award all
costs and expenses of the
arbitration proceeding.
(h) Miscellaneous. To
the maximum extent practicable, the
AAA, the arbitrators and the parties
shall take all action required to
conclude any arbitration proceeding
within 180 days of the filing of the
dispute with the AAA. No arbitrator
or other party to an arbitration
proceeding may disclose the existence,
content or results thereof, except for
disclosures of information by a party
required in the ordinary course of its
business or by applicable law or
regulation. If more than one agreement
for arbitration by or between the parties
potentially applies to a dispute, the
arbitration provision most directly
related to the Loan
<Page>
Documents or the subject matter of the
dispute shall control. This arbitration
provision shall survive termination,
amendment or expiration of any of the
Loan Documents or any relationship
between the parties.
Section 19. Additional
Guarantors. Pursuant to Section
5.10 of the Credit Agreement,
certain Subsidiaries that were not
in existence on the date of the
Credit Agreement are required
to enter into this Agreement as a
Guarantor. Upon execution and
delivery after the date hereof
by the Lender and such Subsidiary
of an instrument in the form of Annex
I, such Subsidiary shall become a
Guarantor hereunder with the same
force and effect as if originally
named as a Guarantor herein. The
execution and delivery of any
instrument adding an additional
Guarantor as a party to this
Agreement shall not require the
consent of any other Guarantor
hereunder. The rights and
obligations of each Guarantor
hereunder shall remain in full
force and effect notwithstanding
the addition of any new Guarantor
as a party to this Agreement.
Section 20. Right of
Setoff. If an Event of Default
shall have occurred and be
continuing, Lender is hereby
authorized at any time and from
time to time, to the fullest extent
permitted by law, to set off and
apply any and all deposits (general
or special, time or demand,
provisional or final) at any time
held and other Indebtedness at any
time owing by such Lender
to or for the credit or the account
of any Guarantor against any or all
the obligations of such
Guarantor now or hereafter existing
under this Agreement and the other
Loan Documents held
by such Lender, irrespective of
whether or not such Person shall
have made any demand under
this Agreement or any other Loan
Document and although such
obligations may be unmatured.
The rights of each Lender under
this Section 20 are in addition
to other rights and remedies
(including other rights of setoff)
which such Lender may have.
<Page>
IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement
as of the day and year first above written.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO
By:_______________________
Name:____________________
Title:___________________
WELLS FARGO BANK, N.A.
By:______________________
Name:____________________
Title:___________________
<Page>
SCHEDULE I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
Guarantor(s) Address
FRTL, Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, FL 32202
Florida Rock and
Tank Lines, Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, FL 32202
STI Holdings, Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, FL 32202
Florida Rock
Properties, Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, Fl 32202
FRP Development Corp. 200 W. Forsyth Street, 7th Floor
Jacksonville, Fl 32202
<Page>
ANNEX I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. [____] dated as
of [_________________], to the Subsidiary
Guarantee Agreement (the "Guarantee
Agreement") dated as of December __,
2012 among each of the subsidiaries
listed on Schedule I thereto (each
such Subsidiary individually, a "Guarantor"
and collectively, the "Guarantors") of
PATRIOT TRANSPORTATION HOLDING, INC., a
Florida corporation (the "Borrower"),
and WELLS FARGO BANK, N.A., a national
banking association (the "Lender").
A. Reference is made to
the 2012 Amended and Restated Credit
Agreement dated as of December __, 2012
(as amended, supplemented or otherwise
modified from time to time, the "Credit
Agreement"), between the Borrower and
the Lender. Capitalized terms used herein
and not otherwise defined herein shall
have the meanings assigned to such terms
in the Credit Agreement.
B. The Guarantors have
entered into the Guarantee Agreement
in order to induce the Lenders to make
Loans. Pursuant to Section 5.10 of the
Credit Agreement, certain Subsidiaries
that were not in existence on the date
of the Credit Agreement are required
to enter into the Guarantee Agreement
as a Guarantor. Section 19 of the
Guarantee Agreement provides that
additional Subsidiaries of the Borrower
may become Guarantors under the
Guarantee Agreement by execution and
delivery of an instrument in the form
of this Supplement. The undersigned
Subsidiary of the Borrower (the "New
Guarantor") is executing this Supplement
in accordance with the requirements of
the Credit Agreement to become a
Guarantor under the Guarantee Agreement
in order to induce the Lenders to make
additional Loans and as consideration
for Loans previously made.
Accordingly, the Lender and the
New Guarantor agree as follows:
Section 1. In accordance
with Section 19 of the Guarantee
Agreement, the New Guarantor by its
signature below becomes a Guarantor
under the Guarantee Agreement with the
same force and effect as if originally
named therein as a Guarantor and the
New Guarantor hereby (a) agrees to all
the terms and provisions of the
Guarantee Agreement applicable to it as
Guarantor thereunder and (b) represents
and warrants that the representations
and warranties made by it as a Guarantor
thereunder are true and correct on and
as of the date hereof. Each reference
to a Guarantor in the Guarantee Agreement
shall be deemed to include the New
Guarantor. The Guarantee Agreement is
hereby incorporated herein by reference.
Section 2. The New Guarantor
represents and warrants to the Lender that
this Supplement has been duly authorized,
executed and delivered by it and
constitutes its legal, valid and binding
obligation, enforceable against it in
accordance with its terms.
Section 3. This Supplement
may be executed in counterparts each of
which shall constitute an original, but
all of which when taken together shall
constitute a single contract. This
Supplement shall become effective when
the Lender shall have received counterparts
of this Supplement that, when taken
together, bear the signatures of the New
Guarantor and the Lender.
<Page>
Delivery of an executed signature page
to this Supplement by facsimile
transmission shall be as effective as
delivery of a manually signed
counterpart of this Supplement.
Section 4. Except as
expressly supplemented hereby, the
Guarantee Agreement shall remain in
full force and effect.
Section 5. THIS SUPPLEMENT
SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF FLORIDA.
Section 6. In case
any one or more of the provisions
contained in this Supplement
should be held invalid, illegal
or unenforceable in any respect,
the validity, legality and
enforceability of the remaining
provisions contained herein and in
the Guarantee Agreement shall
not in any way be affected or
impaired thereby (it being understood
that the invalidity of a
particular provision hereof in a
particular jurisdiction shall not
in and of itself affect the validity
of such provision in any other
jurisdiction). The parties hereto
shall endeavor in good-faith
negotiations to replace the invalid,
illegal or unenforceable provisions
with valid provisions the
economic effect of which comes as
close as possible to that of the
invalid, illegal or
unenforceable provisions.
Section 7. All
communications and notices
hereunder shall be in writing
and given as provided in Section
13 of the Guarantee Agreement.
All communications and notices hereunder
to the New Guarantor shall be given
to it at the address set forth
under its signature below, with
a copy to the Borrower.
Section 8. The New
Guarantor agrees to reimburse the
Lender for its out-of-pocket
expenses in connection with this
Supplement, including the fees,
disbursements and other
charges of counsel for the Lender.
IN WITNESS WHEREOF, the New
Guarantor and the Administrative
Agent have duly executed this
Supplement to the Guarantee
Agreement as of the day and
year first above written.
[Name of New Guarantor]
By:____________________
Name:__________________
Title:_________________
Address:_______________
_______________________
<Page>
WELLS FARGO BANK, N.A.
By:___________________
Name:_________________
Title:________________
<Page>
EXHIBIT D
[FORM OF]
INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
INDEMNITY, SUBROGATION AND CONTRIBUTION
AGREEMENT dated as of December __, 2012 among
PATRIOT TRANSPORTATION HOLDING, INC., a Florida
corporation (the "Borrower"), each Subsidiary
listed on Schedule I hereto (the "Guarantors"),
and WELLS FARGO BANK, N.A., a national banking
association (the "Lender").
Reference is made to (a) the 2012
Amended and Restated Credit Agreement dated
as of December __, 2012 (as amended,
supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the
Borrower and the Lender and (b) the Subsidiary
Guarantee Agreement dated as of December __,
2012, among the Guarantors and the Lender
(as amended, supplemented or otherwise
modified from time to time, the "Guarantee
Agreement"). Capitalized terms used herein
and not defined herein shall have the
meanings assigned to such terms in the
Credit Agreement.
The Lender has agreed to make Loans
to the Borrower, pursuant to, and upon
the terms and subject to the conditions
specified in, the Credit Agreement. The
Guarantors have guaranteed such Loans and
the other Obligations (as defined in the
Guarantee Agreement) of the Borrower under
the Credit Agreement pursuant to the
Guarantee Agreement. The obligation of
the Lenders to make Loans is conditioned
on, among other things, the execution and
delivery by the Borrower and the Guarantors
of an agreement in the form hereof.
Accordingly, the Borrower, each
Guarantor and the Lender agree as follows:
Section 1. Indemnity and
Subrogation. In addition to all such
rights of indemnity and subrogation as the
Guarantors may have under applicable law
(but subject to Section 3), the Borrower
agrees that (a) in the event a payment
shall be made by any Guarantor under the
Guarantee Agreement, the Borrower shall
indemnify such Guarantor for the full
amount of such payment and such Guarantor
shall be subrogated to the rights of the
person to whom such payment shall have
been made to the extent of such payment.
Section 2. Contribution
and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees
(subject to Section 3) that, in the
event a payment shall be made by any other
Guarantor under the Guarantee Agreement
and such other Guarantor (the "Claiming
Guarantor") shall not have been fully
indemnified by the Borrower as provided
in Section 1, the Contributing Guarantor
shall indemnify the Claiming Guarantor in
an amount equal to the amount of such
payment in each case multiplied by a
fraction of which the numerator shall be
the net worth of the Contributing Guarantor
on the date hereof and the denominator
shall be the aggregate net worth of all
the Guarantors on the date hereof (or, in
the case of any Guarantor becoming a party
hereto pursuant to Section 12, the date of
the Supplement hereto executed and
delivered by such Guarantor). Any
Contributing Guarantor making any payment
to a Claiming Guarantor pursuant to this
Section 2 shall be subrogated to the
rights of such Claiming Guarantor
under Section 1 to the extent of such
payment.
<Page>
Section 3. Subordination.
Notwithstanding any provision of this
Agreement to the contrary, all rights
of the Guarantors under Sections 1 and
2 and all other rights of indemnity,
contribution or subrogation under
applicable law or otherwise shall be
fully subordinated to the indefeasible
payment in full in cash of the Obligations.
No failure on the part of the Borrower or
any Guarantor to make the payments
required under applicable law or otherwise
shall in any respect limit the obligations
and liabilities of any Guarantor with
respect to its obligations hereunder, and
each Guarantor shall remain liable for
the full amount of the obligations of such
Guarantor hereunder.
Section 4. Termination.
This Agreement shall survive and be in
full force and effect so long as any
Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so
long as any of the Commitments under the
Credit Agreement have not been terminated,
and shall continue to be effective or be
reinstated, as the case may be, if at any
time payment, or any part thereof, of any
Obligation is rescinded or must otherwise
be restored by any Lender or any Guarantor
upon the bankruptcy or reorganization of
the Borrower, any Guarantor or otherwise.
Section 5. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF FLORIDA.
Section 6. No Waiver; Amendment.
(a) No failure on the part of
the Lender or any Guarantor to exercise,
and no delay in exercising, any right,
power or remedy hereunder shall operate
as a waiver thereof, nor shall any single
or partial exercise of any such right,
power or remedy by the Lender or any
Guarantor preclude any other or further
exercise thereof or the exercise of any
other right, power or remedy. All remedies
hereunder are cumulative and are not
exclusive of any other remedies provided
by law. None of the Lender and the
Guarantors shall be deemed to have waived
any rights hereunder unless such waiver
shall be in writing and signed by such
parties.
(b) Neither this Agreement
nor any provision hereof may be waived,
amended or modified except pursuant to
a written agreement entered into
between the Borrower, the Guarantors
and the Lender.
Section 7. Notices.
All communications and notices
hereunder shall be in writing and
given as provided in the Guarantee
Agreement and addressed as
specified therein.
Section 8. Binding
Agreement; Assignments. Whenever in
this Agreement any of the parties
hereto is referred to, such reference
shall be deemed to include the successors
and assigns of such party; and all
covenants, promises and agreements by
or on behalf of the parties that are
contained in this Agreement shall bind
and inure to the benefit of their respective
successors and assigns. Neither the
Borrower nor any Guarantor may assign or
transfer any of its rights or obligations
hereunder (and any such attempted
assignment or transfer shall be void)
without the prior written consent of the
Lender. Notwithstanding the foregoing,
at the time any Guarantor is released
from its obligations under the Guarantee
Agreement in accordance with such
Guarantee Agreement and the Credit
Agreement, such Guarantor will cease to
have any rights or obligations under this
Agreement.
Section 9. Survival of
Agreement; Severability.
<Page>
(a) All covenants and
agreements made by the Borrower and
each Guarantor herein and in the
certificates or other instruments
prepared or delivered in connection
with this Agreement or the other Loan
Documents shall be considered to have
been relied upon by the
Lender and each Guarantor and shall
survive the making by the Lenders of
the Loans, and shall continue in full
force and effect as long as the
principal of or any accrued interest
on any Loans or any other fee or
amount payable under the Credit
Agreement or this Agreement or under
any of the other Loan Documents is
outstanding and unpaid and as long
as the Commitments have not been
terminated.
(b) In case one or more
of the provisions contained in this
Agreement should be held invalid,
illegal or unenforceable in any
respect, no party hereto shall be
required to comply with such
provision for so long as such
provision is held to be invalid,
illegal or unenforceable, but the
validity, legality and enforceability
of the remaining provisions contained
herein shall not in any way be
affected or impaired thereby. The
parties shall endeavor in good-
faith negotiations to replace the
invalid, illegal or unenforceable
provisions with valid provisions
the economic effect of which comes
as close as possible to that of the
invalid, illegal or
unenforceable provisions.
Section 10. Counterparts.
This Agreement may be executed in
counterparts (and by different parties
hereto on different counterparts) each
of which shall constitute an original,
but all of which when taken together
shall constitute a single contract.
This Agreement shall be effective with
respect to any Guarantor when a
counterpart bearing the signature of
such Guarantor shall have been delivered
to the Lender. Delivery of an
executed signature page to this
Agreement by facsimile transmission
shall be as effective as delivery of a
manually signed counterpart of this
Agreement.
Section 11. Rules of
Interpretation. The rules of
interpretation specified in Section 1.4
of the Credit Agreement shall be
applicable to this Agreement.
Section 12. Additional
Guarantors. Pursuant to Section 5.10
of the Credit Agreement, certain
Subsidiaries of the Borrower that
were not in existence on the date
of the Credit Agreement are required
to enter into the Guarantee Agreement
as Guarantor. Upon the execution and
delivery, after the date hereof, by
the Lender and such Subsidiary of an
instrument in the form of Annex I hereto,
such Subsidiary shall become a Guarantor
hereunder with the same force and effect
as if originally named as a Guarantor
hereunder. The execution and delivery of
any instrument adding an additional
Guarantor as a party to this Agreement
shall not require the consent of any
Guarantor hereunder. The rights and
obligations of each Guarantor
hereunder shall remain in full force
and effect notwithstanding the
addition of any new Guarantor as
a party to this Agreement.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to
be executed by their duly authorized
officers as of the date first appearing
above.
<Page>
PATRIOT TRANSPORTATION
HOLDING, INC.
By:____________________
Name:__________________
Title:________________
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO, as
a Guarantor
By: __________________
Name:_________________
Title:________________
WELLS FARGO BANK, N.A.
By:___________________
Name:_________________
Title:________________
<Page>
SCHEDULE I
TO THE INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
Guarantors
Name Address
FRTL, Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, FL 32202
Florida Rock and Tank Lines,
Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, FL 32202
Florida Rock Properties, Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, Fl 32202
FRP Development Corp. 200 W. Forsyth Street, 7th Floor
Jacksonville, Fl 32202
STI Holdings, Inc. 200 W. Forsyth Street, 7th Floor
Jacksonville, Fl 32202
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ANNEX I
TO INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. [____] dated as of
[__________________], to the Indemnity,
Subrogation and Contribution Agreement
dated as of December __, 2012 (as the
same may be amended, supplemented or
otherwise modified from time to time,
the "Indemnity, Subrogation and
Contribution Agreement") among PATRIOT
TRANSPORTATION HOLDING, INC., a
Florida corporation (the "Borrower"),
each Subsidiary listed on Schedule I
thereto (the "Guarantors") and WELLS
FARGO BANK, N.A. (the "Lender").
A. Reference is made to
(a) the 2012 Amended and Restated
Credit Agreement dated as of December
__, 2012 (as amended, supplemented or
otherwise modified from time to
time, the "Credit Agreement"), between
the Borrower and the Lender, and (b)
the Subsidiary Guarantee Agreement
dated as of December __, 2012, among
the Guarantors and the Lender (as
amended, supplemented or otherwise
modified from time to time, the
"Guarantee Agreement").
B. Capitalized terms
used herein and not otherwise defined
herein shall have the meanings assigned
to such terms in the Indemnity,
Subrogation and Contribution Agreement
and the Credit Agreement.
C. The Borrower and the
Guarantors have entered into the
Indemnity, Subrogation and Contribution
Agreement in order to induce the Lender
to make Loans. Pursuant to Section
5.10 of the Credit Agreement, certain
Subsidiaries that were not in existence
on the date of the Credit Agreement are
required to enter into the Guarantee
Agreement as a Guarantor. Section 12
of the Indemnity, Subrogation and
Contribution Agreement provides that
additional Subsidiaries may become
Guarantors under the Indemnity,
Subrogation and Contribution Agreement
by execution and delivery of an
instrument in the form of this
Supplement. The undersigned
Subsidiary (the "New Guarantor") is
executing this Supplement in accordance
with the requirements of the Credit
Agreement to become a Guarantor under
the Indemnity, Subrogation and Contribution
Agreement in order to induce the Lenders
to make additional Loans and as
consideration for Loans previously made.
Accordingly, the Lender and the New
Guarantor agree as follows:
Section 1. In accordance
with Section 12 of the Indemnity,
Subrogation and Contribution Agreement,
the New Guarantor by its signature below
becomes a Guarantor under the Indemnity,
Subrogation and Contribution Agreement
with the same force and effect as if
originally named therein as a Guarantor
and the New Guarantor hereby agrees
to all the terms and provisions of the
Indemnity, Subrogation and Contribution
Agreement applicable to it as Guarantor
thereunder. Each reference to a Guarantor
in the Indemnity, Subrogation and
Contribution Agreement shall be deemed
to include the New Guarantor. The
Indemnity, Subrogation and Contribution
Agreement is hereby incorporated herein
by reference.
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Section 2. The New Guarantor
represents and warrants to the Lender that
this Supplement has been duly authorized,
executed and delivered by it and
constitutes its legal, valid and binding
obligation, enforceable against it in
accordance with its terms.
Section 3. This Supplement
may be executed in counterparts (and by
different parties hereto on different
counterparts) each of which shall
constitute an original, but all of
which when taken together shall
constitute a single contract. This
Supplement shall become effective when
the Lender shall have received
counterparts of this Supplement that,
when taken together, bear the signature
of the New Guarantor and the Lender.
Delivery of an executed signature
page to this Supplement by facsimile
transmission shall be as effective as
delivery of a manually signed
counterpart of this Supplement.
Section 4. Except as
expressly supplemented hereby, the
Indemnity, Subrogation and
Contribution Agreement shall remain
in full force and effect.
Section 5. THIS
SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF FLORIDA.
Section 6. In case any
one or more of the provisions contained
in this Supplement should be held
invalid, illegal or unenforceable
in any respect, neither party hereto
shall be required to comply with such
provision for so long as such
provision is held to be invalid,
illegal or unenforceable, but the
validity, legality and enforceability
of the remaining provisions
contained herein and in the Indemnity,
Subrogation and Contribution Agreement
shall not in any way be affected or
impaired. The parties hereto shall
endeavor in good-faith negotiations to
replace the invalid, illegal or
unenforceable provisions with valid
provisions the economic effect
of which comes as close as possible to
that of the invalid, illegal or
unenforceable provisions.
Section 7. All
communications and notices hereunder
shall be in writing and given as
provided in Section 7 of the
Indemnity, Subrogation and Contribution
Agreement. All communications and
notices hereunder to the New Guarantor
shall be given to it at the address
set forth under its signature.
Section 8. The New Guarantor
agrees to reimburse the Lender for its
reasonable out-of-pocket expenses in
connection with this Supplement,
including the reasonable fees, other
charges and disbursements of counsel
for the Lender.
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IN WITNESS WHEREOF, the New
Guarantor and the Lender have duly
executed this Supplement to the
Indemnity, Subrogation and Contribution
Agreement as of the day and year
first above written.
[Name of New Guarantor]
By:____________________
Name:__________________
Title:_________________
Address:_______________
WELLS FARGO BANK, N.A.
By:__________________
Name:________________
Title:_______________
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SCHEDULE I
TO SUPPLEMENT NO. ____ TO THE INDEMNITY,
SUBROGATION AND CONTRIBUTION AGREEMENT
Guarantors
Name Address
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EXHIBIT 2.3
NOTICE OF REVOLVING LOAN BORROWING
[Date]
Wells Fargo Bank, N.A.
One Independent Drive, 25th Floor
Jacksonville, Florida 32202
Dear Sirs:
Reference is made to the 2012
Amended and Restated Credit Agreement
dated as of December __, 2012 (as
amended and in effect on the date
hereof, the "Credit Agreement"),
between the undersigned, as Borrower,
and Wells Fargo Bank, N.A., as Lender.
Terms defined in the Credit Agreement
are used herein with the same meanings.
This notice constitutes a Notice of
Revolving Loan Borrowing, and the
Borrower hereby requests a Revolving
Loan Borrowing under the Credit
Agreement, and in that connection
the Borrower specifies the following
information with respect to the
Revolving Loan Borrowing requested
hereby:
(A) Aggregate principal amount of
Revolving Borrowing :
(B) Date of Revolving Loan Borrowing
(which is a Business Day):
(C) Interest Rate basis :
(D) Interest Period :
(E) Location and number of Borrower's
account to which proceeds of
Revolving Borrowing are to be
disbursed:
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The Borrower hereby represents
and warrants that the conditions
specified in paragraphs (a), (b) and
(c) of Section 3.2 of the Credit
Agreement are satisfied.
Very truly yours,
PATRIOT TRANSPORTATION
HOLDING, INC.
By:____________________
Name:__________________
Title:_________________
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EXHIBIT 2.5
NOTICE OF TERM LOAN BORROWING
[Date]
Wells Fargo Bank, N.A.
One Independent Drive, 25th Floor
Jacksonville, Florida 32202
Dear Sirs:
Reference is made to the 2012
Amended and Restated Credit Agreement
dated as of December __, 2012 (as amended
and in effect on the date hereof, the
"Credit Agreement"), between the
undersigned, as Borrower, and Wells
Fargo Bank, N.A., as Lender. Terms
defined in the Credit Agreement are
used herein with the same meanings.
This notice constitutes a Notice of
Term Loan Borrowing, and the Borrower
hereby requests a Term Laon Borrowing
under the Credit Agreement, and in
that connection the Borrower
specifies the following information with
respect to the Revolving Borrowing
requested hereby:
(A) Aggregate principal amount of
Term Loan Borrowing :
(B) Date of Term Loan Borrowing
(which is a Business Day):
(C) Interest Rate basis :
(D) Interest Period :
(E) Location and number of Borrower's
account to which proceeds of Term
Loan Borrowing are to be disbursed:
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The Borrower hereby represents and
warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section
3.2 of the Credit Agreement are satisfied.
Very truly yours,
PATRIOT TRANSPORTATION
HOLDING, INC.
By:___________________
Name:_________________
Title:_______________
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EXHIBIT 2.7
NOTICE OF CONTINUATION/CONVERSION
[Date]
Wells Fargo Bank, N.A.
One Independent Drive, 25th Floor
Jacksonville, Florida 32202
Dear Sirs:
Reference is made to the 2012
Amended and Restated Credit Agreement
dated as of December __, 2012 (as
amended and in effect on the date
hereof, the "Credit Agreement"),
between the undersigned, as Borrower,
and Wells Fargo Bank, N.A., as Lender.
Terms defined in the Credit Agreement
are used herein with the same meanings.
This notice constitutes a Notice of
Revolving Borrowing, and the Borrower
hereby requests a Revolving Borrowing under
the Credit Agreement, and in that
connection the Borrower specifies the
following information with respect to
the Revolving Borrowing requested hereby:
(A) Revolving Borrowing to which
this request applies:
(B) Principal amount of Revolving
Borrowing to be converted/continued:
(C) Effective date of election (which
is a Business Day):
(D) Interest rate basis:
(E) Interest Period:
Very truly yours,
PATRIOT TRANSPORTATION
HOLDING, INC.
By:___________________
Name:________________
Title:_______________
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EXHIBIT 3.1(b)(iv)
FORM OF SECRETARY'S CERTIFICATE
Reference is made to the 2012 Amended
and Restated Credit Agreement dated as of
December __, 2012 (as amended and in effect
on the date hereof, the "Credit Agreement"),
between the undersigned, as Borrower, and
Wells Fargo Bank, N.A., as Lender. Terms
defined in the Credit Agreement are used
herein with the same meanings. This
Certificate is being delivered pursuant
to Section 3.1(b)(iv) of the Credit
Agreement.
I, [______________________], Secretary
of the Borrower, DO HEREBY CERTIFY that:
(a) annexed hereto as Exhibit
A is a true and correct copy of the articles
of incorporation of the Borrower, which
have not been amended, modified,
supplemented or restated except as set
forth in Exhibit A and remain in full
force and effect as of the date hereof;
(b) no proceeding have been
instituted or are pending or contemplated
with respect to the dissolution,
liquidation or sale of all or
substantially all the assets of
the Borrower or threatening its
existence or the forfeiture or any
of its corporate rights;
(c) annexed hereto as
Exhibit B is a true and correct copy
of the Bylaws of the Borrower as in
effect on the date of the attached
Resolutions and at all times
thereafter through the date hereof;
(d) annexed hereto as
Exhibit C is a true and correct
copy of certain resolutions duly
adopted by the Board of Directors
of the Borrower at a meeting of
said Board of Directors duly
called and held on ___________________,
2012, which resolutions are the only
resolutions adopted by the Board of
Directors of the Borrower or any
committee thereof relating to the
Credit Agreement and the other Loan
Documents to which the Borrower is
a party and the transactions
contemplated therein and have
not been revoked, amended,
supplemented or modified and are in
full force and effect on the date
hereof; and
(e) each of the persons
named below is a duly elected and
qualified officer of the Borrower
holding the respective office set
forth opposite his or her name and
the signature set forth opposite
each such person's name is his or
her genuine signature:
Name Title Specimen Signature
[Include all
officers who are
signing the
Credit Agreement
or any other Loan
Documents.]
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IN WITNESS WHEREOF, I have
hereunto signed my name this ___ day
of December, 2012.
______________________, Secretary
I, [_______________________],
[____________________________] of the Borrower,
do hereby certify that [______________________]
has been duly elected, is duly qualified and
is currently serving as the [Assistant]
Secretary of the Borrower, that the signature
set forth above is [his/her] genuine
signature and that [he/she] has held such
office at all times since [_________________].
IN WITNESS WHEREOF, I have hereunto
signed my name this ___ day of December, 2012.
__________________________
Title:
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EXHIBIT 3.1(b)(vii)
FORM OF OFFICER'S CERTIFICATE
Reference is made to the 2012 Amended
and Restated Credit Agreement dated as of
December __, 2012 (as amended and in effect
on the date hereof, the "Credit Agreement"),
between the undersigned, as Borrower, and
Wells Fargo Bank, N.A., as Lender. Terms
defined in the Credit Agreement are used
herein with the same meanings. This
Certificate is being delivered pursuant to
Section 3.1(b)(vii) of the Credit Agreement.
I, [________________________],
[_________________] of the Borrower, DO
HEREBY CERTIFY that:
(a) the representations and
warranties of the Borrower set forth in
the Credit Agreement are true and correct
on and as of the date hereof; and
(b) no Default or Event of
Default has occurred and is continuing
at the date hereof; and
(c) since [the date], which
is the date of the most recent financial
statements described in Section 5.1(a)
of the Credit Agreement, there has been
no change which has had or could
reasonably be expected to have a
Material Adverse Effect; and
(d) no consents, approvals,
authorizations, registrations or filings
are required to be made or obtained by
or on behalf of the Borrower or any of
the Guarantors in connection with
the Loans.
IN WITNESS WHEREOF, I have hereunto
signed my name this ___ day of December,
2012.
By:___________________
Name:_________________
Title:________________
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Annex I
Captive Investment Policy Statement
The primary criteria for investments shall
be safety of principal and liquidity. Return
on investment shall not take precedence over
safety of principal.
1. Investments may be either in fixed or
floating rate instruments denominated in U. S.
dollars.
2. Investments can include U.S. Treasury
Securities, U.S Government Agency securities,
U.S. Agency mortgage-backed securities and
collateralized mortgage obligations and U.S.
Corporate Bonds. Investments in certificates
of deposit and time deposits in U.S. banks
may also be made.
3. Investments will be made in various
issuers to ensure proper diversification.
4. The fixed income portfolio shall be
laddered to meet the cash flow needs of
the program. Generally ten to twenty
percent of the portfolio will be invested
in securities having maturities of two
years or less from the date of purchase.
For this purpose, floating rate certificates
of deposit and notes, irrespective of final
maturity, are deemed to be mature on the
next coupon-reset date. The portfolio will
generally invest in securities that mature
in ten years or less from the date of
purchase.
5. In order for the securities of an issuer
to qualify for investment of assets, they
must have either a Moody's, S&P or Fitch
rating of "A-" or better or such issues
must be unconditionally guaranteed by a
company or entity with a Moody's, S&P or
Fitch rating of "A-" or better or, in
the event of an issue not being subject
to such a guarantee or rating, the
equivalent as determined by the
investment manager.
National Interstate Insurance retains the
final right of approval for all investment
transactions
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