$175,250,000.00
SECOND AMENDED
AND RESTATED CREDIT FACILITY AGREEMENT
dated as of April 27, 1999
DYCOM INDUSTRIES, INC.
as Borrower
THE SUBSIDIARIES OF DYCOM INDUSTRIES, INC.
as Guarantors
DRESDNER BANK LATEINAMERIKA AG
as Administrative Agent
FIRST UNION NATIONAL BANK
as Lead Manager
ABN AMRO BANK, N.V.
as Co-Manager
WACHOVIA BANK, N.A.
as Co-Manager
and
THE BANKS NAMED HEREIN
as Lenders
TABLE OF CONTENTS
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I. DEFINITIONS..............................................................2
II. THE CREDIT FACILITIES....................................................9
2.01 The "A"Line of Credit...........................................9
2.02 The "B"Line of Credit...........................................11
2.03 The "C"Term Loan................................................13
2.04 The "D"Line of Credit...........................................14
2.05 Commitments.....................................................15
2.06 Lenders' Several Liability......................................16
2.07 Notice to Administrative Agent and Lenders......................16
2.08 Request Irrevocable.............................................16
2.09 Payment to Lenders..............................................16
2.10 Prepayment of Advances..........................................17
2.11 Post-Maturity Rates.............................................17
2.12 Option to Extend Term...........................................17
III. CONDITIONS PRECEDENT.....................................................17
3.01 Documents Required for the Closing..............................18
3.02 Conditions to All Advances and Letters of Credit................19
3.03 Legal Matters...................................................20
IV. COLLATERAL SECURITY......................................................20
4.01 Composition of the Collateral...................................20
4.02 Rights in Property Held by Lenders..............................21
4.03 Priority of Liens...............................................21
4.04 Financing Statements............................................22
4.05 Other Perfection of Security Interests..........................22
4.06 Reservation of Right to Require Additional Collateral...........22
V. REPRESENTATIONS AND WARRANTIES...........................................23
5.01 Organization....................................................23
5.02 No Violations...................................................23
5.03 Authorization; Validity.........................................23
5.04 Financial Statements............................................23
5.05 Liens and Encumbrances..........................................23
5.06 Legal Proceedings...............................................23
5.07 Taxes...........................................................24
5.08 Adverse Contracts...............................................24
5.09 Intellectual Properties.........................................24
5.10 Year 2000 Covenant..............................................24
5.11 SEC Filings; Financial Statements...............................24
5.12 Environmental...................................................25
5.13 Regulations G, U and X..........................................26
5.14 Accuracy of Information.........................................26
5.15 Pension and Welfare Plans.......................................26
VI. BORROWER'S COVENANTS.....................................................27
6.01 Affirmative Covenants...........................................27
6.02 Negative Covenants..............................................31
VII. DEFAULT..................................................................34
7.01 Events of Default...............................................34
7.02 Acceleration....................................................35
7.03 Remedies........................................................36
VIII.FUNDING AND PAYMENTS.....................................................36
8.01 Advances........................................................36
8.02 Payments by Borrower............................................36
8.03 Banking Days....................................................37
8.04 Evidence of Debt................................................37
8.05 Certificate Conclusive and Binding..............................37
IX. LENDERS AND ADMINISTRATIVE AGENT.........................................37
9.01 Appointment.....................................................37
9.02 Nature of Duties................................................37
9.03 No Liability to Borrower........................................37
9.04 Liability.......................................................37
9.05 Information about Borrower and Guarantors.......................38
9.06 Duties in Respect of Events of Default..........................38
9.07 Covenant to Reimburse...........................................38
9.08 Non-Receipt of Funds by Administrative Agent....................38
9.09 Assignments.....................................................39
9.10 Resignation and Removal of Administrative Agent; Successors.....41
X. INDEMNITIES, SET-OFF AND PRO RATA SHARING................................41
10.01. Commitments; Pro Rata Amounts...................................41
10.02 General Indemnity...............................................41
10.03 Set-Off.........................................................42
10.04 Pro Rata Sharing................................................42
XI. MISCELLANEOUS............................................................43
11.01 Construction....................................................43
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11.02 Further Assurance...............................................43
11.03 Enforcement and Waiver by Administrative Agent on Behalf of Lend43
11.04 Agency Fee and Expenses of Lenders..............................43
11.05 Annual Facility Fee.............................................44
11.06 Notices.........................................................44
11.07 Waiver and Release by Borrower..................................45
11.08 Participation...................................................45
11.09 Applicable Law..................................................46
11.10 Binding Effect. Assignment and Entire Agreement................46
11.11 Superseding Effect of Advance Agreement.........................46
11.12 Funding Losses..................................................46
11.13 Increased Costs.................................................46
11.14 Severability....................................................47
11.15 Counterparts....................................................47
11.16 Seal............................................................47
11.17 Communications..................................................47
11.18 Joinder by Guarantors...........................................48
11.19 Waiver of Jury Trial............................................48
11.20 Confidentiality.................................................48
11.21 Waivers, Amendments, etc........................................48
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EXHIBITS
EXHIBIT A - Renewal, Amended and Restated Master Promissory Note of
Borrower under the "A" Line of Credit.
EXHIBIT B - Renewal, Amended and Restated Master Promissory Note of
Borrower under the "B" Line of Credit.
EXHIBIT C - Renewal, Amended and Restated Master Promissory Note of
Borrower under the "C" Term Loan.
EXHIBIT D - Renewal, Amended and Restated Master Promissory Note of
Borrower under the "D" Line of Credit.
EXHIBIT E - Form of Request for Advance.
EXHIBIT F - Form of Second Amended and Restated Security Agreement.
EXHIBIT G - Form of Second Amended and Restated Guarantee Agreement
EXHIBIT H - Form of Assignment and Acceptance
SCHEDULES
SCHEDULE 3.01(I) List of Assets of Borrower and Guarantors
SCHEDULE 5.01 List of Subsidiaries
SCHEDULE 5.02 No Violations
SCHEDULE 5.07 Taxes
SCHEDULE 5.12 Environmental
SCHEDULE 5.15 Employee Benefit Plans
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SECOND AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
- -----------------------------------------------------
THIS SECOND AMENDED AND RESTATED CREDIT FACILITY AGREEMENT (the
"Agreement") dated as of the 27th day of April, 1999 by and among DRESDNER BANK
LATEINAMERIKA AKTIENGESELLSCHAFT, Miami Agency, an international bank agency
licensed by the State of Florida (as the context requires, sometimes herein
referred to as "Administrative Agent" and sometimes as a "Lender"), ABN AMRO
BANK, N.V., Miami Agency, an international bank agency licensed by the State of
Florida, THE FIRST NATIONAL BANK OF CHICAGO, a national banking association,
BANK LEUMI USA, a New York Banking Corporation, WACHOVIA BANK, N.A., a national
banking association, FIRST UNION NATIONAL BANK, a national banking association,
ISRAEL DISCOUNT BANK LIMITED, Miami Agency, an international bank agency
licensed by the State of Florida; BANQUE SUDAMERIS, Miami Agency, an
international bank agency licensed by the State of Florida (each a "Lender" and,
collectively, "Lenders"), on the one part, and DYCOM INDUSTRIES, INC., a Florida
corporation ("Borrower"), ANSCO & ASSOCIATES, INC., a Florida corporation, IVY
H. SMITH COMPANY, a Florida corporation, KOHLER CONSTRUCTION COMPANY, INC., a
Florida corporation, S.T.S. INC., a Florida corporation, FIBER CABLE, INC., a
Delaware corporation, GLOBE COMMUNICATIONS, INC., a North Carolina corporation,
STAR CONSTRUCTION, INC., a Tennessee corporation, TESINC, INC., an Arizona
corporation, COMMUNICATIONS CONSTRUCTION GROUP, INC., a Pennsylvania
corporation, INSTALLATION TECHNICIANS, INC., a Missouri corporation, CABLECOM
INC., a Delaware corporation, LOCATING, INC., a Washington corporation, ERVIN
CABLE CONSTRUCTION INC., a Kentucky corporation and APEX DIGITAL TV, INC., a
Kentucky corporation (each a "Guarantor" and, collectively, "Guarantors"), on
the other part.
WITNESSETH:
WHEREAS, Borrower and certain Lenders are parties to a certain Credit
Facility Agreement (the "Original Facility Agreement") dated the 28th day of
April, 1997, as amended the 29th day of October, 1997, extending credit to
Borrower in a total amount not to exceed THIRTY FIVE MILLION AND 00/100 US
DOLLARS ($35,000,000.00) (the "Original Facility"), as amended and restated by
that certain Amended and Restated Credit Facility Agreement (the "First Amended
and Restated Facility Agreement") dated April 29, 1998 (the "First Amended
Facility") extending additional credit to Borrower in an amount not to exceed
FIFTY MILLION AND 00/100 US DOLLARS for a credit in a total amount not to exceed
EIGHTY-FIVE MILLION AND 00/100 US DOLLARS ($85,000,000.00), as amended by that
certain Amendment to the First Amended and Restated Facility Agreement dated the
21st day of December, 1998; and
WHEREAS, Borrower has requested that Lenders amend and restate the
First Amended and Restated Facility Agreement to extend additional credit to it
in an amount of NINETY MILLION TWO HUNDRED FIFTY THOUSAND US DOLLARS
($90,250,000.00) for credit in a total amount not to exceed ONE HUNDRED
SEVENTY-FIVE MILLION TWO HUNDRED FIFTY
THOUSAND AND 00/100 US DOLLARS ($175,250,000.00) (the "Second Amended
Facility"), and Lenders are willing to do so upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the parties hereby
agree to amend and restate the First Amended and Restated Facility Agreement,
adding additional parties, and increasing the facility amount in, and restate
the First Amended and Restated Facility Agreement as follows:
I. DEFINITIONS
-----------
1.01 "Advance or Advances" shall mean a loan or advance or the
aggregate of all advances under this Agreement in accordance with Section 2.01,
2.02, 2.03 or 2.04 hereof.
1.02 "Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee, and accepted by
Administrative Agent, in substantially the form of Exhibit I hereto.
1.03 "Banking Day" shall mean any day in which banks operating in the
City of Miami, Florida, City of New York, New York and the City of London,
England are open for business or are not authorized or required to be closed. A
"London Banking Day" shall mean any day in which banks operating in the City of
London, England are open for business or are not authorized or required to
close.
1.04 "Closing Date" shall mean April 27, 1999, and "Closing" shall mean
the acts scheduled to take place on the Closing Date in the State of Georgia at
a place to be designated by the Administrative Agent.
1.05 "Collateral Documents" shall mean the documents granting the
security interest in the Collateral specified in Section 4.01 hereof. For
purposes of this definition, Collateral Documents shall not include the
Guarantees.
1.06 "Commercial Letter(s) of Credit" shall mean an undertaking by
Administrative Agent, on behalf of Lenders, to pay money to a beneficiary, which
is a provider of goods to Borrower or any Guarantor, upon Borrower's delivery of
an application to Administrative Agent, in form and substance as set forth in
Administrative Agent's standard application for Commercial Letters of Credit,
such undertaking to be payable to the beneficiary by Administrative Agent upon
presentation of documents only by the beneficiary to Administrative Agent
pursuant to Section 2.01 hereof.
1.07 "Commitment" shall mean, in relation to each Lender, the
proportionate amount of all Advances to be made to Borrower under this
Agreement, as set forth in Section 2.05 and, in respect of a proposed Advance,
the portion of that Advance which is to be made by that Lender.
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1.08 "Control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with") shall mean: (A)
the possession, directly or indirectly, of the power to direct or cause the
direction and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise or (B) the beneficial ownership by any
Person, or two or more Persons acting in concert, of 20% or more of the voting
shares of capital stock of Borrower or any Guarantor.
1.09 "Default" shall mean any event or circumstance which, with the
giving of notice, the lapse of time, or both, would constitute an Event of
Default.
1.10 "Defaulting Lender" shall mean any Lender which has failed to pay
any amount which it is required to pay or fund hereunder.
1.11 "Dollar," "US Dollars" or "$" shall mean the lawful currency of
the United States of America.
1.12 "EBITDA" at any date, shall mean Borrower's income (loss) from
operations before interest, taxes, depreciation and amortization for the most
recently ended four (4) consecutive Fiscal Quarters, computed or calculated on a
consolidated basis in accordance with GAAP.
1.13 "EBITDAR" at any date, shall mean Borrower's EBITDA plus its lease
and rental expenses for the most recently ended four (4) consecutive Fiscal
Quarters, computed or calculated on a consolidated basis in accordance with
GAAP.
1.14 "Eligible Assignee" shall mean (i) a Lender; (ii) a commercial
bank organized under the laws of the United States, or any State thereof, and
having a combined capital and surplus of at least Fifty Million US Dollars
($50,000,000); (iii) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having a combined capital and surplus of at
least One Hundred Million US Dollars ($100,000,000), so long as such bank is
acting through a branch or agency located in the United States, in the country
in which it is organized or in another country that is described in this clause
(iii); (iv) the central bank of any country that is a member of the Organization
for Economic Cooperation and Development; and (v) any other Person approved by
the Agent; provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
1.15 "Environmental Laws" shall mean all applicable federal, state or
local statutes, laws ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public health
and safety and protection of the environment including, but not limited to, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended ("CERCLA"), and the Comprehensive Environmental Response Compensation
Liability Information Systems List ("CERCLIS").
3
1.16 "Event of Default" shall mean any of the events or circumstances
specified in Section 7.01 hereof.
1.17 "Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by Administrative Agent from three federal funds brokers of recognized
standing selected by it.
1.18 "Financial Statements" shall mean Borrower's or, where
appropriate, a Guarantor's, balance sheet, statement of income and related
earnings, statement of changes in shareholder's equity and statement of cash
flows with related notes specifying significant accounting practices and their
impact on such financial statements, heretofore delivered, or to be delivered,
under the terms of this Agreement, to Lenders.
1.19 "Fiscal Quarter" shall mean any quarter of a Fiscal Year.
1.20 "Fiscal Year" shall mean any period of twelve consecutive calendar
months ending on July 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1999 Fiscal Year") refer to the
Fiscal Year ending on July 31 occurring during such calendar year.
1.21 "GAAP" shall mean generally accepted accounting principles of the
United States of America, consistently applied during the periods involved.
Accounting terms not otherwise specifically defined herein shall have the
definitions assigned to them under, or be interpreted in accordance with, GAAP,
and all accounting determinations hereunder to be made on a consolidated basis
shall be made for Borrower and all its Subsidiaries.
1.22 "Guarantor or Guarantors" where the context so requires, shall
mean, one or more of the following corporations, all of which are wholly-owned
Subsidiaries of Borrower:
ANSCO & ASSOCIATES, INC., a Florida corporation;
IVY H. SMITH COMPANY, a Florida corporation;
KOHLER CONSTRUCTION COMPANY, INC., a Florida corporation;
S.T.S. INC., a Florida corporation;
FIBER CABLE, INC., a Delaware corporation;
GLOBE COMMUNICATIONS, INC., a North Carolina corporation;
STAR CONSTRUCTION, INC., a Tennessee corporation;
4
TESINC, INC., an Arizona corporation;
COMMUNICATIONS CONSTRUCTION GROUP, INC., a Pennsylvania corporation
INSTALLATION TECHNICIANS, INC., a Missouri corporation
CABLECOM INC., a Delaware corporation;
LOCATING, INC., a Washington corporation;
ERVIN CABLE CONSTRUCTION INC., a Kentucky corporation;
APEX DIGITAL TV, INC., a Kentucky corporation; and
all other wholly-owned subsidiaries of Borrower now owned or hereafter acquired,
each of which shall execute a guarantee of the Indebtedness in favor of Lenders
(the "Guarantees").
1.23 "Hazardous Material" shall mean:
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance or requirement (including
consent decrees and administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, all as amended or hereafter amended.
1.24 "Hedging Instrument(s)" shall mean an agreement, device or
arrangement providing for payments which are related to fluctuations of interest
rates, exchange rates or forward rates, including, but not limited to, dollar
denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts or warrants between
Borrower and/or any Guarantor, on the one hand, and any Lender, on the other.
1.25 "Indebtedness", as applied to any Person, shall mean all items of
indebtedness, obligations or other liabilities of such Person, whether matured
or unmatured, liquidated or unliquidated, direct or contingent, joint or
several, including, without limitation:
(A) all indebtedness of others guaranteed, by such Person,
directly or indirectly, in any manner, or endorsed (other than for collection or
deposit in the ordinary course of business) or discounted with recourse;
(B) all indebtedness of others, in effect, guaranteed by such
Person, directly or indirectly, through agreements, contingent or otherwise: (1)
to purchase such indebtedness; or (2) to purchase, sell or lease (as lessee or
lessor) property, products, materials or supplies or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such
5
indebtedness or to insure the owner of the indebtedness against loss; or (3) to
supply funds to or in any other manner invest in the debtor;
(C) all indebtedness secured by (or for which the holder of
such indebtedness has a right, contingent or otherwise, to be secured by) any
mortgage, deed of trust, pledge, Lien, security interest or other charge or
encumbrance on property owned or acquired subject thereto, whether or not the
liabilities secured thereby have been assumed; and
(D) all indebtedness incurred as the lessee of goods or
services under leases that, in accordance with GAAP, should not be reflected on
the lessee's balance sheet.
(E) all obligations of such Person with respect to letters of
credit, performance bonds or similar instruments; and
(F) all obligations of such Person under any Hedging
Instruments.
1.26 "Interest Period" shall mean the period, as set forth below, for
determination of the rate of interest payable with respect to any particular
Advance or the aggregate amount of all Advances, as the case may be.
1.27 "LIBOR" shall mean, in relation to any relevant sum and any
relevant Interest Period, the rate of interest per annum determined by
Administrative Agent to be the arithmetic mean (rounded up if necessary to the
nearest integral multiple of 1/16%) of the respective rates shown on the Reuters
Monitor Screen as being the rate per annum at which Dollar deposits are offered
for a period equal or comparable to such period or, if there is no period equal
or comparable to such period, the period which is closest in length to such
period at or about 11:00 a.m. (London time) on the second London Banking Day
before the first day of such period; for this purpose "Reuters Monitor Screen"
means the display designated as page "LIBO" on the Reuters Monitor system or
such other page as may replace page "LIBO" on that system for the purpose of
displaying offered rates for Dollar deposits.
1.28 "Lien" shall mean any mortgage, deed of trust, hypothecation,
assignment, collateral deposit arrangement, security interest, encumbrance, lien
(statutory or other), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement or similar instrument
naming Borrower or any Subsidiary of Borrower as owner of the Collateral to
which such Lien relates as debtor under the law of any jurisdiction.
1.29 "Majority Lenders" shall mean, at any time, Lenders, excluding
Defaulting Lenders, owed at least sixty six and two-thirds per cent (66.67%) of
the then aggregate outstanding Advances or, if no such Advances are then
outstanding, Lenders having at least sixty six and two thirds percent (66.67%)
of the Commitments.
6
1.30 "Material Adverse Effect" shall mean (A) a materially adverse
effect on the assets, business, operations, properties or condition (financial
or otherwise) of Borrower and Guarantors, taken as a whole, (B) an impairment of
the ability of Borrower or Guarantors to perform any of their respective
obligations hereunder or under the Notes, the Guarantees or any Collateral
Documents or (C) an impairment of the validity or enforceability of, or an
impairment of the rights, remedies or benefits available to Lenders under this
Second Amended and Restated Facility or the Notes, Guarantees or any Collateral
Documents or (D) any significant diminution of the amount which Lenders would be
likely to receive (after giving consideration to delays in payment and costs of
enforcement) in the liquidation of any of the Collateral.
1.31 "Note or Notes" shall mean one or all of the notes identified in
Section 2.01, 2.02, 2.03 or 2.04 below.
1.32 "Obligations" shall mean the obligations of Borrower:
(A) to pay the principal of and interest on the Notes in
accordance with the terms thereof and to satisfy all of the other liabilities to
Lenders arising hereunder or under the Notes or any Collateral Documents,
whether now existing or hereafter incurred, matured or unmatured, direct or
contingent, joint or several, including any extensions, modifications, renewals
thereof and substitutions therefor;
(B) to repay to Lenders all amounts advanced by Lenders
hereunder on behalf of Borrower or any Guarantor including, without limitation,
advances for principal or interest payments to prior secured parties,
mortgagees, or lienors, or for taxes, levies, insurance, rent, repairs to or
maintenance or storage of any of the Collateral; and
(C) to reimburse Lenders, on demand, for all of Lenders'
expenses and costs, including the reasonable fees and expenses of their
respective counsel, in connection with the preparation, administration,
amendment, modification or enforcement of this Agreement and the documents
required hereunder including, without limitation, any proceedings brought or
threatened to enforce payment of any of the obligations referred to in the
foregoing sub-paragraphs (A) and (B).
1.33 "Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced:
(A) Liens for taxes, assessments or similar charges incurred
in the ordinary course of business that are not yet due and payable;
(B) Liens imposed by law, such as landlord's, materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other similar Liens
arising in the ordinary course of business securing obligations that are
incurred in the ordinary course of business that are not yet due and payable; or
7
(C) Pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations;
(D) Purchase money Liens upon or in property acquired or held
by Borrower or any of its Subsidiaries in the ordinary course of business to
secure Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of the property to be subject to such
Liens which Indebtedness is permitted to be incurred in accordance with Section
6.02(A)(5), Section 6.02(A)(6) and Section 6.02(A)(7);
(E) Easements, rights of way and other encumbrances on title
to real property that do not render title to the property encumbered thereby
unmarketable, adversely affect the use of such property for its present purposes
or materially impair the net equity of the owner of such property;
(F) Liens in favor of Lenders created pursuant to the terms of
this Agreement.
1.34 "Person" shall mean any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
1.35 "Prime Rate" shall mean the rate of interest published by the
Administrative Agent at its offices in Miami, Florida as its "prime rate" from
time to time, which is purely a benchmark, and is not necessarily Administrative
Agent's best or lowest rate. The Prime Rate as applied to the credit facilities
under this Agreement shall fluctuate with each and every change in the
Administrative Agent's published Prime Rate; provided, however, that the Prime
Rate as published by Administrative Agent shall never exceed the maximum rate of
interest allowed by law.
1.36 "Pro Rata Share" shall mean, in relation to each Lender, in
respect of any amount owing to Lenders hereunder, the portion of that amount
which is owing to that Lender and, in respect of a proposed Advance, the pro
rata share of the Advance which is to be made by that Lender in accordance with
its Commitment.
1.37 "Release" shall mean a "release", as such term is defined in
CERCLA.
1.38 "Resource Conservation and Recovery Act" shall mean the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time
1.39 "SEC" shall mean the U.S. Securities and Exchange Commission.
1.40 "SEC Documents" shall mean all forms, proxy statements,
registration statements, reports, schedules, and other documents filed or
required to be filed, by Borrower or any Guarantor with any regulatory authority
pursuant to the Securities Laws.
1.41 "Securities Laws" shall mean the U.S. Securities Act of 1933, as
amended, the U.S. Securities and Exchange Act of 1934, as amended, the
Investment Company Act of 1940, as
8
amended, the Investment Advisors Act of 1940, as amended, the Trust Indenture
Act of 1939, as amended, and the rules and regulations of any regulatory
authority promulgated thereunder.
1.42 "Senior Funded Debt" shall mean all funded Advances under this
Agreement.
1.43 "Small Business(es)" shall mean any Target (as defined in Section
6.02(J)(2)) that meets the criteria set forth in Section 6.02(J).
1.44 "Standby Letter(s) of Credit" shall mean any letter or letters of
credit issued by Administrative Agent on behalf of Lenders in favor of an
insurance company, bonding company or customer of Borrower and/or one or more of
Guarantors to stand in lieu of a retention or the posting of a bid, performance
or completion bond in a construction contract.
1.45 "Subsidiary or Subsidiaries" of any Person shall mean, any
corporation of which more than 50% of the outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time, or in the future, directly owned
by such Person or by one or more Subsidiaries of such Person, or by such Person
and one or more Subsidiaries of such Person. Unless otherwise expressly
provided, all references herein to a Subsidiary shall mean a Subsidiary of
Borrower or a Guarantor, as the context requires.
1.46 "Total Funded Debt" shall mean all funded Advances, loans and debt
of Borrower on a consolidated basis including, without limitation, capital
leases. Contingent liabilities, such as Letters of Credit under this Agreement,
are excluded from Total Funded Debt.
1.47 "Year 2000 Problem" shall mean any significant risk that computer
hardware, software or equipment containing embedded microchips essential to the
business or operations of Borrower or any of Guarantors will not, in the case of
dates or time periods occurring after December 31, 1999, perform properly date
sensitive functions at least as effectively and reliably as in the case of times
or time periods occurring before January 1, 2000, including the making of
accurate leap year calculations.
II. THE CREDIT FACILITIES
---------------------
2.01 The "A" Line of Credit. So long as no Default or Event of Default
under this Agreement exists at the time a request for issuance is made, the "A"
line of credit facility (the ` "A" Line of Credit') shall be available, for a
period of three (3) years from the Closing Date up to a total aggregate
principal amount of SEVENTEEN MILLION FIVE HUNDRED THOUSAND AND 00/100 US
DOLLARS ($17,500.000.00) for the issuance of Standby Letters of Credit and
Commercial Letters of Credit for the account of Borrower and/or any Guarantor
for the purpose of issuing a letter of credit to an insurance company, lending
company or customer of Borrower and/or Guarantor in lieu of a retention or
posting of a bid, performance or completion bond in a construction contract for
Borrower's insurance policies, as follows:
9
(A) General. Standby Letters of Credit and Commercial Letters
of Credit (collectively, the "Letters of Credit") requested under this
subsection shall be upon written request by Borrower three (3) Banking Days
prior to the intended date of issuance and, in the event such Letter of Credit
is to be issued on behalf of a Guarantor, by Borrower and such Guarantor (as
co-applicants) to Administrative Agent ("Request for Letters of Credit"),
stating the specific purpose of each such Letter of Credit, the type of credit
(Standby Letter of Credit or Commercial Letter of Credit) and the specific
entity (whether Borrower or one or more of Guarantors) for whose account such
Letter of Credit is to be issued and shall provide all information required for
issuance, including names and addresses of all beneficiaries. Any such Letters
of Credit requested shall carry an expiry of not more than one (1) year, shall
be in good commercial form, payable against presentation of documents only, and
incorporate only clear and concise terms and conditions for payment, without
ambiguities. Any Letters of Credit or advances outstanding under the "A" Line of
Credit established under the First Amended Facility at the Closing of this
Second Amended Facility shall be treated as issued under this "A" Line of
Credit, with no change, however, in the expiry or terms of any such advances or
Letter of Credit, all of which are set forth on Schedule 2.01(A) hereto.
(B) Effect of Issuance. The issuance of any Letters of Credit
under the "A" Line of Credit shall reduce the availability of further Letters of
Credit or Advances under this "A" Line of Credit by the amount subject to
payment under the same, unless and until the same expires.
(C) Payment Under Letters of Credit. Any payments which
Administrative Agent is required to make under the terms of any Letter of Credit
shall be treated as cash Advances under the "A" Line of Credit and shall be
repaid to Administrative Agent, for the account of Lenders on or before the
expiration date provided for under the relevant Letter of Credit. Such payments
shall likewise reduce the availability of the "A" Line of Credit for the
issuance of further Letters of Credit in the amount of the same until and to the
extent that such payments shall be repaid. Interest on the outstanding balance
of such Advances shall be payable monthly, in arrears. Upon the occurrence of an
Event of Default, and while there are any Letters of Credit outstanding,
Borrower shall provide to Lenders additional collateral in the form of cash
deposits, if requested by Majority Lenders. Borrower shall pay immediately any
amount drawn under a Letter of Credit after the expiration of the "A" Line of
Credit.
(D) Fees for Issuance of Letters of Credit. Fees for issuance
of Standby Letters of Credit and Commercial Letters of Credit shall be
determined at the time a Request for Letter of Credit is submitted, according to
Borrower's election, at either:
(1) eighty-seven and one-half basis points
(0.875%) per annum of the amount subject to
payment under the relevant Letter of Credit,
payable quarterly, in advance, at issuance
and at the beginning of each quarter
thereafter for so long as the relevant
Letter of Credit remains outstanding,
together with any renewals thereof; or
10
(2) seventy five basis points (0.75%) per annum
of the amount subject to payment under the
relevant Letter of Credit, in advance, at
issuance and at each anniversary thereafter
for so long as the relevant Letter of Credit
remains outstanding, together with any
renewals thereof.
(E) Interest Rate on Payments Made Under Letters of Credit.
Interest on all payments made by Administrative Agent or Lenders pursuant to
Section 2.01(C) shall be charged at the Prime Rate plus one per cent (1%) per
annum from the date of payment until the repayment thereof.
(F) Letter of Credit Agreement. Borrower shall execute
Administrative Agent's standard Letter of Credit Application/Agreement with
respect to each Request for Letter of Credit under the "A" Line of Credit.
(G) Manner of Participation in Letters of Credit.
Notwithstanding any other term herein contained, Administrative Agent shall be
the sole issuer of Letters of Credit under the "A" Line of Credit on behalf of
all Lenders. Upon notifications as provided for in Sections 2.07 and 10.01, each
Lender shall set up appropriate reserves on their respective books for the
contingent liability to Administrative Agent represented by the issuance of any
Letter of Credit, and (except for Administrative Agent as Lender) shall issue
its own standby letter of credit, in favor of Administrative Agent, in
accordance with the respective Commitments set forth in Paragraph 2.05. Once
Administrative Agent has been required to pay under the terms of a Letter of
Credit, each Lender shall be required to fund or reimburse such payment to
Administrative Agent, in accordance with such Lender's Commitment, as set forth
in Section 2.05 hereof. Lenders, parties to the First Amended Facility, agree to
adjust their respective Pro Rata Share of commitments, among themselves, in
proportion to their interests, in Advances and Letters of Credit outstanding
under the "A" Line of Credit of the First Amended Facility.
(H) Note. The "A" Line of Credit shall be evidenced by a
master promissory note (Note "A"), substantially in the form attached hereto as
Exhibit "A".
2.02 The "B" Line of Credit. So long as no Default or Event of Default
under this Agreement exists at the time a request for borrowing is made
hereunder, for a period of three (3) years from the Closing Date, the "B" line
of credit facility (the `"B" Line of Credit') will be available on a revolving
basis for Advances each having a term of up to one hundred eighty (180) days.
During the period when the "B" Line of Credit is available, Borrower may borrow,
pay, prepay (subject to Section 2.10 hereof) and re-borrow, on a revolving
basis, up to a maximum principal amount of FIFTY MILLION US DOLLARS
($50,000,000.00), as follows:
(A) General. The initial Advance under the "B" Line of Credit
shall be utilized for general working capital purposes of Borrower and
Guarantors, and shall be drawn at Closing for the purpose of paying all of
Borrower and Guarantors' then existing Obligations under the "B" Line of Credit
of the First Amended Facility. On the Closing Date, Borrower shall elect a term
for such initial Advance of either thirty (30), sixty (60), ninety (90) or one
hundred
11
eighty (180) days and the rate of interest elected under the terms of Section
2.02(C) hereof. From and after such initial Advance, further Advances requested
under this sub-paragraph shall be made upon written request made by Borrower (a
"Request for Advance") three (3) Banking Days prior to the intended date of
funding each Advance stating the specific purpose of each Advance, the specific
entity (whether Borrower or one or more of Guarantors) utilizing said Advance,
the period of time for which the Advance is requested, either thirty (30), sixty
(60), ninety (90) or one hundred eighty (180) days, and the rate of interest
elected under the terms of Section 2.02(C). Each Request for Advance under the
"B" Line of Credit shall be for not less than Two Million US Dollars
($2,000,000.00) or for amounts greater than said minimum only in multiples of
Five Hundred Thousand US Dollars ($500,000.00).
(B) Repayment. Each Advance under the "B" Line of Credit shall
be repaid within the period of time specified in the relevant Request for
Advance.
(C) Interest Rate. Interest with respect to each Advance under
the "B" Line of Credit shall accrue and be paid on the unpaid principal balance
from time to time outstanding at one of the following rates elected by Borrower
in the relevant Request for Advance:
(1) the thirty (30), sixty (60), ninety (90) or
one hundred eighty (180) day LIBOR rate
effective on the date of such Advance
according to the term for which the relevant
Advance is requested, plus one and
one-quarter of one percent (1.25%) per
annum; or
(2) the Prime Rate minus one and one-eighth of
one per cent (1.125%) per annum, to change
with each change in the Prime Rate.
Interest based on the Prime Rate shall be computed on the basis of a year of 365
or 366 days, as the case may be. Interest based on LIBOR shall be computed on
the basis of a 360-day year in each case for the actual number of days elapsed
(i.e., 1/360 of a full year's interest shall accrue for each day any LIBOR based
Advance is outstanding) and shall be due quarterly (or, if earlier, at maturity)
and payable in arrears. Said interest rate shall never exceed the maximum rate
allowed, from time to time, by law.
(D) Non-Utilization Fee. Borrower shall pay to Administrative
Agent in arrears, for the ratable account of Lenders, on a quarterly basis and
on the date of termination of the availability of funds under this Second
Amended Facility, a non-utilization fee equal to fifteen (15) basis points
(0.15%) per annum of the difference between the total amount available under the
"B" Line of Credit and the average of the Advances outstanding during the three
(3) month period immediately preceding such quarter.
(E) Note. The "B" Line of Credit shall be evidenced by a
master promissory note (Note "B"), substantially in the form attached hereto as
Exhibit "B".
2.03 The "C" Term Loan. Upon delivery of this Agreement and fulfillment
of the conditions precedent as set forth herein, Lenders agree to fund a term
Advance (the `"C" Term
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Loan') for the amount of TWELVE MILLION SEVEN HUNDRED FIFTY THOUSAND AND 00/100
US DOLLARS ($12,750,000.00), as follows:
(A) General. The "C" Term Loan shall be funded on the Closing
Date for the purpose of repaying all sums owing under the "C" Line of Credit
under the First Amended Facility and the balance for general corporate purposes
of Borrower.
(B) Repayment. The "C" Term Loan shall be repaid in nine (9)
equal consecutive semi-annual installments in the principal amount of One
Million Dollars ($1,000,000.00) each, commencing ninety (90) calendar days from
the Closing Date, with accrued interest to be paid with each such installment
and the remaining balance in the principal amount of Three Million Seven Hundred
Fifty Thousand and 00/100 Dollars ($3,750,000.00) plus accrued interest thereon
becoming due and payable five (5) years from the Closing Date.
(C) Interest Rate. Interest on the "C" Term Loan shall accrue
and be paid on the unpaid principal balance from time to time outstanding at one
of the following rates elected by Borrower on the Closing Date:
(1) the thirty (30), sixty (60), ninety (90) or
one hundred eighty (180) day LIBOR rate
effective on the Closing Date applicable to
the thirty (30), sixty (60), ninety (90) or
one hundred eighty (180) day initial
Interest Period selected by Borrower, plus
one and three-quarters of one per cent
(1.75%) per annum, to change in accordance
with the LIBOR Rate applicable to each
relevant Interest Period elected by Borrower
thereafter, provided, however, that, if at
the end of any relevant Interest Period
Borrower shall not make such an election on
a timely basis, then the one hundred eighty
(180) day rate shall be applicable; or
(2) the Prime Rate minus one-half of one per
cent (0.50%) per annum, to change with each
change in the Prime Rate.
Interest based on the Prime Rate shall be computed on the basis of a year of 365
or 366 days, as the case may be. Interest based on LIBOR shall be computed on
the basis of a 360-day year in each case for the actual number of days elapsed
(i.e., 1/360 of a full year's interest shall accrue for each day any LIBOR based
Advance is outstanding) and shall be due quarterly (or, if earlier, at maturity)
and payable in arrears. Said interest rate shall never exceed the maximum rate
allowed, from time to time, by law.
(D) Note. The "C" Term Loan shall be evidenced by a master
promissory note (Note "C"), substantially in the form attached hereto as Exhibit
"C".
2.04 The "D" Line of Credit. So long as no Default or Event of Default
under this Agreement exists at the time a Request for Advance is made hereunder,
for a period of three (3) years from the Closing Date, the "D" line of credit
facility (the `"D" Line of Credit') will be
13
available, subject to Section 2.04(F), on a non-revolving basis, for new
equipment purchases and acquisition of stock and/or assets of Small Businesses
by Borrower or any Guarantor. During such term, Borrower may borrow, a total
amount of up to a maximum limit of NINETY FIVE MILLION US DOLLARS
($95,000,000.00), as follows:
(A) General. The initial Advance under the "D" Line of Credit
shall be for the purpose of paying any amounts outstanding under the "D" Line of
Credit of the First Amended Facility; provided, however, that such initial
Advance shall be repaid under the schedule(s) of remaining payments for amounts
outstanding under the Original Facility or the First Amended Facility, as
applicable. On the Closing Date, Borrower shall elect the rate of interest
applicable to such initial Advance in accordance with the terms of Section
2.04(C) hereof. From and after the date of said initial Advance, further
Advances requested under this subsection shall be made upon a Request for
Advance made by Borrower three (3) Banking Days prior to the intended date of
funding of each Advance stating the specific purpose of each Advance, the
specific entity (whether Borrower or one or more Guarantors) utilizing such
Advance, the specific equipment or Small Business acquisition to be financed
with such Advance and the rate of interest elected under the terms of Section
2.04(C). After the initial Advance, each Request for Advance under the "D" Line
of Credit shall be for not less than One Million US Dollars ($1,000,000.00) or
for amounts greater than said minimum only in multiples of Two Hundred Fifty
Thousand US Dollars ($250,000.00).
(B) Repayment. Borrower shall repay Administrative Agent for
the ratable account of Lenders the outstanding principal amount of each Advance
made to Borrower pursuant to this Section 2.04 in up to fifteen installments,
each installment in an amount such that the principal amount of the Advance is
repaid in equal quarterly installments, commencing on the last day of the first
quarter after the Advance is made, with the final installment paid on or before
October 22, 2004.
(C) Interest Rate. Interest with respect to each Advance under
the "D" Line of Credit shall accrue and be paid on the unpaid principal balance
of each Advance from time to time outstanding at one of the following rates
elected by Borrower in the relevant Request for Advance:
(1) the thirty (30), sixty (60), ninety (90) or
one hundred eighty (180) day LIBOR rate
effective on the Closing Date applicable to
the thirty (30), sixty (60), ninety (90) or
one hundred eighty (180) day initial
Interest Period elected by Borrower, plus
one and one-half of one per cent (1.50%) per
annum, to change in accordance with the
LIBOR Rate applicable to each relevant
Interest Period elected by Borrower
thereafter, provided, however, that if, at
the end of any relevant Interest Period
Borrower shall not make such an election on
a timely basis, then the one hundred eighty
(180) day rate shall be applicable; or
14
(2) the Prime Rate in effect, from time to time,
minus three quarters of one per cent (0.75%)
per annum, to change with each change in the
Prime Rate.
Interest based on the Prime Rate shall be computed on the basis of a year of 365
or 366 days, as the case may be. Interest based on LIBOR shall be computed on
the basis of a 360-day year in each case for the actual number of days elapsed
(i.e., 1/360 of a full year's interest shall accrue for each day any LIBOR based
Advance is outstanding) and shall be due monthly (or, if earlier, at maturity)
and payable in arrears. Such interest rate shall never exceed the maximum rate
allowed, from time to time, by law.
(D) Note. The "D" Line of Credit shall be evidenced by a
master promissory note ("Note") substantially in the form attached hereto as
Exhibit "D."
(E) Additional Condition to Advance for Equipment Purchases.
Except for the initial Advance under the "D" Line of Credit and for Advances
under Paragraph 2.04(F), Advances under the "D" Line of Credit shall not exceed
80% of verifiable cost for equipment financed thereunder. All such Requests for
Advance under the "D" Line of Credit shall be accompanied by supplier's invoices
and bills of lading for such equipment and all such equipment shall be subject,
at acquisition, to the Lien of the Collateral Documents.
(F) Availability of Line for Business Acquisitions. The total
amount of Advances available under the "D" Line of Credit for acquisition of
stock and or assets of Small Businesses is limited to Forty Five Million US
Dollars ($45,000,000).
(G) Non-Utilization Fee. Borrower shall pay to Administrative
Agent, for the ratable account of Lenders, on a quarterly basis and on the date
of termination of the availability of funds under this Second Amended Facility,
a non-utilization fee equal to fifteen (15) basis points (0.15%) per annum of
the difference between the total amount available under the "D" Line of Credit
and the average of the Advances outstanding during the three (3) month period
immediately preceding such quarter.
2.05 Commitments. Each Lender will participate in each Advance in the
proportion which its undrawn Commitment bears to the undrawn amount of the
Second Amended Facility before such Advance is made. It is understood and agreed
that the Commitment hereunder with respect to each Lender is as follows:
15
DRESDNER BANK LATEINAMERIKA
AKTIENGESELLSCHAFT, Miami Agency $35,750,000.00
FIRST UNION NATIONAL BANK 35,500,000.00
ABN AMRO BANK, N.V. 22,000,000.00
WACHOVIA BANK, N.A. 22,000,000.00
BANK LEUMI USA 15,000,000.00
THE FIRST NATIONAL BANK OF CHICAGO 15,000,000.00
ISRAEL DISCOUNT BANK LIMITED, Miami Agency 15,000,000.00
BANQUE SUDAMERIS 15,000,000.00
2.06 Lenders' Several Liability. The rights and obligations of Lenders
under this Agreement are several and, accordingly:
(A) the amount at any time owing hereunder by Borrower to each
Lender shall be a separate and independent debt and each Lender shall be
entitled to protect and enforce its respective rights arising out of this
Agreement, the Notes, the Guarantees and the Collateral Documents; and
(B) the failure of any Lender to perform its obligations
hereunder shall not relieve any other Lender, Administrative Agent, Borrower or
any Guarantor of any of its respective obligations, nor shall any Lender or
Administrative Agent be responsible for the obligations of any other Lender or
Administrative Agent.
2.07 Notice to Administrative Agent and Lenders. Borrower shall
promptly notify Administrative Agent of each Request for Advance and each
Request for Letter of Credit and shall forward a duplicate original thereof to
each Lender. Subject to the provisions of this Agreement, each Lender shall make
available its Pro Rata Share of Commitments in the relevant Advance to
Administrative Agent.
2.08 Request Irrevocable. A Request for Advance or a Request for Letter
of Credit, once delivered to Administrative Agent, shall be irrevocable and
Borrower shall be bound to draw the Advance or accept the issuance of the Letter
of Credit in accordance therewith, except as otherwise provided in this
Agreement. If, for any reason, an Advance is not drawn in accordance with a
Request for Advance or a Request for Letter of Credit is not issued, Borrower
shall, on demand, pay to Administrative Agent for the account of each Lender
such amount (if any) as such Lender may certify to be necessary to compensate it
for any loss or expense incurred in liquidating or redeploying funds arranged
for the purpose of the proposed Advance not having been drawn or the proposed
Letter of Credit not having been issued in accordance with the Request for
Advance or Request for Letter of Credit.
2.09 Payment to Lenders. All sums payable to Lenders hereunder shall be
paid to Administrative Agent for the ratable account of Lenders in immediately
available funds, in lawful money of the United States of America. Administrative
Agent shall send Borrower statements for all amounts due hereunder, which
statements shall be considered correct and conclusively binding on Borrower,
unless Borrower notifies Administrative Agent to the contrary within fifteen
(15)
16
calendar days of its receipt of any statement which it deems to be incorrect.
Alternatively, at their sole discretion, each Lender may charge against any
deposit account of Borrower, all or any part of any amounts due hereunder.
2.10 Prepayment of Advances. Borrower shall have the right to prepay
any Advance hereunder, in a minimum amount of One Million US Dollars
($1,000,000.00). Prime Rate Advances shall be prepayable without penalty. In the
event that Borrower prepays all or any part of any Advance with respect to which
the LIBOR based rate of interest has been elected other than on the last date of
the relevant Interest Period for such Advance, then the rate of interest
applicable to any portion of such Advance that remains outstanding shall become
the Prime Rate (to change with each change in such Prime Rate) and Borrower
shall reimburse Lenders for costs incurred by Lenders as a result of having
funded such Advance as a LIBOR Rate based Advance, by paying Lenders the sum of
$100.00 per Lender plus, in the event the LIBOR Rate on the date of such
prepayment is less than the LIBOR Rate effective for such Advance, a sum equal
to the difference, on an annualized basis, between the LIBOR Rate effective for
such Advance and the LIBOR Rate effective on the date of such prepayment times
the amount of principal of such Advance for the remaining days between the date
of prepayment and the last day of such relevant Interest Period. All prepayments
under this Section 2.10 shall be made together with accrued interest to the date
of such prepayment on the principal amount prepaid. Any prepayment of Advances
pursuant to this Section 2.10 shall be applied to the installments thereof in
inverse order of maturity. Hedging Instrument transactions or agreements shall
not be prepayable.
2.11 Post-Maturity Rates. In the event any principal amount of any
Advance, or any other monetary Obligation of Borrower has not been paid when due
hereunder (whether on the stated maturity date, upon acceleration or otherwise)
Borrower shall pay, but only to the extent permitted by law, interest (after as
well as before judgment) on such unpaid principal amount at a rate per annum
(the "Post-Maturity Rate") equal to the Prime Rate plus a margin of 5%.
2.12 Option to Extend Term. So long as there is no Default, and subject
to the approval by all Lenders, Borrower shall have the option to extend the
expiration of the original three (3) year term of the "A", "B" and " D" Lines of
Credit for two (2) consecutive one (1) year terms by submitting a written
request for extension at least one hundred eighty (180) days prior to the
expiration of the original three (3) year term and one (1) year option term, as
applicable. Lenders shall have one hundred twenty (120) days following the
receipt of such request to approve or deny any request for extension. The
failure of any Lender to respond to any request for extension pursuant to this
Section 2.12 shall constitute a denial of such request.
III. CONDITIONS PRECEDENT
The obligation of Lenders to make the Advances or issue Letters of Credit
hereunder is subject to the following conditions precedent:
17
3.01 Documents Required for the Closing. At Closing, Borrower shall
have delivered the following executed documents to Administrative Agent, in such
form and content as may be required by, and acceptable to, Administrative Agent,
in its sole discretion:
(A) All of the Notes, dated as of the Closing Date;
(B) Security agreements, substantially in the form of Exhibit
F attached hereto, financing statements and any other Collateral Documents, and
such other documents, acceptable to Administrative Agent and Lenders' counsel,
as may be necessary or required under the applicable law to perfect or continue
the perfection of the first and prior Lien of Lenders against the Collateral;
(C) Guarantees, substantially in the form of Exhibit G
attached hereto;
(D) Corporate resolutions, and incumbency certificates from
the Board of Directors of Borrower authorizing the execution of this Agreement,
the Notes, Borrower's Collateral Documents and related documentation, in such
form and content as may be required by Administrative Agent or its counsel;
(E) Corporate resolutions and incumbency certificates of the
Boards of Directors and shareholders' resolutions from each of Guarantors
authorizing the execution of the Guarantees and each of Guarantors' Collateral
Documents;
(F) Certificates of good standing and certified copies of the
respective Articles of Incorporation and Bylaws of Borrower and each Guarantor;
(G) Written opinion letters from Borrower's and Guarantor's
counsel containing legal opinions with respect to the representations and
warranties set forth below and opining that:
(1) Borrower and each Guarantor are corporations
duly organized, validly existing and in good standing under the laws of their
respective states of incorporation, are qualified to transact business and are
in good standing in those states where the nature of their business or property
owned by them require qualification, and Guarantors are wholly-owned
Subsidiaries of Borrower;
(2) Borrower and each Guarantor has capacity
(statutory and otherwise) and power to execute and deliver this Agreement, to
borrow money hereunder, to grant the Collateral required hereunder, to execute
and deliver the Notes, the Guarantees and the Collateral Documents, and to
perform their obligations hereunder and thereunder; and
(3) All corporate action by Borrower and each
Guarantor and all consents and approvals of any persons necessary to the
validity of this Agreement, the Notes, the Guarantees, the Collateral Documents,
and each other document to be delivered hereunder has been duly obtained; this
Agreement, the Notes, the Guarantees, the Collateral documents, and such other
documents executed in connection herewith, are legal, valid, binding and
enforceable in accordance with their respective terms and do not conflict with
any provision of the charter or bylaws of
18
Borrower or any Guarantor or any applicable laws or any other agreement binding
Borrower or any of Guarantors or its or their respective properties;
(4) The procedures contemplated with respect to the
perfection of the Liens on the Collateral are good and sufficient in form, under
applicable law, to perfect first and prior Liens on the Collateral in favor of
Lenders;
(5) No legal or administrative proceedings exist or
are threatened against Borrower or any Guarantor, which substantially adversely
affect their respective conditions, financial or otherwise.
(H) With respect to any Advance required at Closing upon which
Borrower desires to elect a LIBOR based interest rate, Borrower shall have
delivered notice of its election with respect thereto, not later than the
second (2nd) Banking Day before the Closing Date;
(I) Borrower shall provide Administrative Agent with a listing
of all assets titled or untitled and the locations of such assets owned by
Borrower and each Guarantor;
(J) Five (5) days prior to the Closing Date, Borrower shall
have delivered to Administrative Agent all schedules required to be delivered
by it hereunder; and
(K) Such other documentation as may reasonably be required by
Administrative Agent or Lenders' counsel.
3.02 Conditions to All Advances and Letters of Credit. The obligation
of Lenders to make any Advance to be made by it (including the initial Advance),
and issue or renew any Letters of Credit, is subject to the satisfaction of the
following conditions precedent on the relevant borrowing date:
(A) Request for Advance. Administrative Agent shall have
received a Request for Advance or Request for Letter of Credit, as applicable,
as required under Article II.;
(B) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on and as
of the date of such Request for Advance or Request for Letter of Credit as
applicable, with the same effect as if made on and as of such date;
(C) No Existing Default. No Default or Event of Default shall
exist or shall result from the making of such Advance or the issuance of such
Letter of Credit;
(D) No Future Advance Notice. Lenders shall not have received
any notice that any Collateral Document will no longer secure on a first
priority basis (other than Permitted Liens) future Advances to be made, or
Letters of Credit to be issued, under this Agreement which shall not have been
cured on or prior to the date of the Request for Advance or Request for Letter
of Credit, as applicable;
19
(E) Other Documents; Satisfaction. Not later than 10:30 a.m.
(Miami time) on the proposed Advance or Letter of Credit date, Lenders shall
have received and found satisfactory, on a reasonable basis, such additional
information, legal opinions and documents relating to Borrower, Guarantors or
this Agreement or any Collateral Document, as Lenders may require as a result of
circumstances arising or becoming known to Lenders since the date of the
previous funding of an Advance or Letter of Credit or, if no funding has been
made, the date of this Agreement.
All Requests for Advance made under this Agreement shall follow the form of
Exhibit "E", attached hereto and made a part hereof.
Each Request for Advance or Request for Letter of Credit, as applicable,
submitted by Borrower hereunder shall constitute a representation and warranty
by Borrower hereunder, as of the date of each such Request for Advance or
Request for Letter of Credit, as applicable, that the conditions in this Section
3.02 are satisfied.
3.03 Legal Matters. At the time of the Closing and of each subsequent
disbursement of an Advance or issuance of Letter of Credit hereunder, all legal
matters incidental thereto shall be satisfactory to Administrative Agent's
counsel, Messrs. Baker & McKenzie.
IV. COLLATERAL SECURITY
-------------------
4.01 Composition of the Collateral. Borrower and each Guarantor grants
or confirms the prior grant to Lenders under the Original Credit Facility and
the First Amended Facility, as appropriate, a Lien on and security interest in
the following property belonging to each of them (the "Collateral") as security
for the payment of the Obligations whether now existing or hereafter arising and
the performance by Borrower and each Guarantor of its obligations under this
Agreement and any Hedging Instrument entered into from time to time:
(A) All machinery, equipment, vehicles, vessels, aircraft,
fixtures, buildings, appliances, furniture and other tangible assets, now owned
or hereafter acquired and wherever located.
(B) All inventory now owned or hereafter acquired and products
and proceeds thereof.
(C) All accounts, contract rights and accounts receivable, now
or hereafter in existence and all proceeds thereof, and all returned or
repossessed goods arising from or relating to any of the said accounts or
rights.
(D) All instruments, documents, chattel paper and general
intangibles, rights in trademarks, trade names, patents, copyrights and licenses
now owned or hereafter acquired or arising.
20
(E) All cash or non-cash proceeds of any of the foregoing,
including insurance proceeds.
(F) All ledger sheets, files, records, documents, and
instruments (including, but not limited to, computer programs, tapes and related
electronic data processing software) evidencing an interest or relating to the
above, and all products or proceeds of the above.
(G) All substitutes, and replacements for, accessions,
attachments, and other additions to, and tools, parts, and equipment used in
connection with any of the above, and all products and proceeds of the above.
Such security interest shall be evidenced by appropriate security agreements or
amendments to such security agreements executed in connection with the Second
Amended Facility or mortgages, trust deeds or other instruments in such form as
may be required by law and shall be perfected, as required by Administrative
Agent, in all appropriate jurisdictions. The Collateral, together with all of
Borrower's other property or the property of any Guarantor of any kind held by
any Lenders, shall stand as one general, continuing collateral security for all
Obligations, and such continuing security interest may be retained by Lenders
until all Obligations have been satisfied in full. All existing UCC-1 financing
statements filed pursuant to the Original Credit Facility, and UCC-3 financing
statements filed pursuant to the First Amended Facility, shall be amended to
identify all of Lenders under this Agreement and additional UCC-1 financing
statements will be filed to perfect the security interests granted by any
Guarantor under this Agreement who was not party to the First Amended and
Restated Facility Agreement.
4.02 Rights in Property Held by Lenders. As security for the prompt
satisfaction of all Obligations, Borrower hereby assigns, transfers and sets
over to Lenders all of its right, title and interest in and to, and grants
Lenders a Lien on and a security interest in, all amounts that may be owing from
time to time by Lenders to Borrower in any capacity, including, without
limitation, any balance or share belonging to Borrower of any deposit or other
account with Lenders, which Lien and security interest shall be independent of
any right of set-off which any of Lenders may have. The security interest shall
be shared among Lenders as agreed to by them.
4.03 Priority of Liens. The foregoing Liens shall be first and prior
Liens except for the Permitted Liens.
4.04 Financing Statements. Borrower shall:
(A) Join and cause each Guarantor to join with Lenders in
executing such financing statements (including amendments thereto and
continuation statements thereof), in form and content, satisfactory to
Administrative Agent, as Administrative Agent may specify;
21
(B) Pay or reimburse Administrative Agent for any present and
future costs and taxes of filing or recording the same in such public offices as
the Administrative Agent may designate in such jurisdictions; and
(C) Take such other steps as the Administrative Agent may
direct, including the noting of Lenders' Lien on the Collateral and on any
certificates of title therefor.
A carbon, photographic, or other reproduction of this Agreement shall be
sufficient as a financing statement and may be filed, in Lenders' sole
discretion, in any appropriate office in lieu thereof.
To the extent lawful, Borrower hereby appoints Administrative Agent and each
Lender as its attorney-in-fact (without requiring the Administrative Agent or
any Lender to act as such) to execute any financing statement or other filing in
the name of Borrower, and to perform all other acts that the Administrative
Agent or such Lender deems appropriate to perfect and continue its security
interest in, and to protect and preserve, the Collateral.
4.05 Other Perfection of Security Interests. Administrative Agent or
Lenders may elect not to perfect the security interests in all of the
Collateral, including any such Collateral as may require perfection by registry
upon title certificates (as in the case, in certain jurisdictions, of motor
vehicle title certificates). Administrative Agent and Lenders, nevertheless,
reserve the right, in their sole discretion, to require the perfection of such
security interests in the future and Borrower agrees to cooperate with such
perfection.
4.06 Reservation of Right to Require Additional Collateral. In the
event of the occurrence of an Event of Default under this Agreement,
Administrative Agent and Lenders further reserve the right, but shall not have
the obligation, to require that Borrower and any or all of Guarantors grant
additional collateral security for repayment of the Second Amended Facility
including, but not limited to, mortgages, deeds of trust and other security
interests in any and all real estate or other assets, (not included in the
Collateral), owned or hereafter acquired by Borrower or any Guarantor.
V. REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants as of the Closing Date, and as of the first day
of each month during the effectiveness of this Agreement and prior to
disbursement of each Advance or issuance of a Letter of Credit under this
Agreement, that:
5.01 Organization. Borrower and each Guarantor is a duly organized
corporation validly existing under the laws of its respective state or country
of incorporation, and has the necessary capacity (statutory and otherwise) and
power to execute this Agreement, the Notes, the Guarantees, the Collateral
Documents and the other documents contemplated hereunder to which each of them
is a party. Schedule 5.01 contains a list of all Subsidiaries of Borrower.
Borrower owns all issued and outstanding shares of capital stock of each
Subsidiary.
22
5.02 No Violations. Except as set forth in Schedule 5.02, the execution
and performance of this Agreement, the Notes and the Collateral Documents does
not (i) violate any provisions of any existing indenture, contract or agreement
to which Borrower or any Guarantor is a party, or any provision of their
respective certificates of incorporation or bylaws; (ii) contravene any law or
governmental regulation or court decree or order binding on or affecting
Borrower or any Guarantor; or (iii) result in, or require the creation or
imposition of, any Lien on any of Borrower's or Guarantor's properties, except
those created hereunder and under the Collateral Documents.
5.03 Authorization; Validity. The execution, delivery and performance
of this Agreement, the Collateral Documents, the Advances, the Guarantees, and
the issuance of the Notes and other documents contemplated hereunder, have been
duly authorized by all necessary corporate action of Borrower and of each
Guarantor and, when executed and delivered by Borrower and each Guarantor, shall
constitute the legal, valid and binding obligations of Borrower and each
Guarantor, respectively, enforceable in accordance with their respective terms.
5.04 Financial Statements. The Financial Statements furnished to
Lenders were prepared in accordance with GAAP, and fairly reflect the financial
conditions of Borrower and each Guarantor as of the date of such statements, and
no event that would have a Material Adverse Effect has occurred since July 31,
1998.
5.05 Liens and Encumbrances. The properties and assets of Borrower and
of each Guarantor are not subject to any Lien or encumbrance which is not
permitted by this Agreement and the Liens granted to Lenders under this
Agreement are first and prior Liens on the Collateral (except for the Permitted
Liens), which have been properly perfected under applicable law.
5.06 Legal Proceedings. No legal or administrative proceedings exist or
are, to Borrower's knowledge, threatened against Borrower or any Guarantor,
which will or could likely have a Material Adverse Effect, financial or
otherwise, and Borrower and each Guarantor is in full compliance with the
respective state, federal or national regulatory agencies with regulatory
jurisdiction over its business.
5.07 Taxes. Except as set forth in Schedule 5.07, Borrower and each of
Guarantors has filed all tax returns and reports required by law to have been
filed by it and has paid all income, franchise and other taxes and charges as
they became due, and has established such reserves as reasonably believed to be
adequate for such purposes.
5.08 Adverse Contracts. Neither Borrower nor any of Guarantors are
parties to any instrument affecting its respective business in a manner which
could reasonably be likely to have a Material Adverse Effect and none of them is
in breach or default under any existing contract which could reasonably be
likely to have a Material Adverse Effect.
5.09 Intellectual Properties. Borrower and each Guarantor possesses all
necessary patents, trademarks, trade names, copyrights and licenses necessary to
conduct their respective businesses.
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5.10 Year 2000 Covenant. Borrower has reviewed, or will expeditiously
review, its operations and those of Guarantors, suppliers and customers with a
view to assessing whether its businesses, or the businesses of any of
Guarantors, will be vulnerable to a Year 2000 Problem or will be vulnerable to
the effects of a Year 2000 Problem suffered by any of Borrower's or any of the
Guarantor's major commercial counter-parties. Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all Guarantors) are able to effectively process
data, including dates before, on and after January 1, 2000, without experiencing
any Year 2000 Problem that could cause a Material Adverse Effect. At the request
of Lenders, Borrower will provide Lenders with assurances and substantiations
(including, but not limited to, the results of internal or external audit
reports prepared in the ordinary course of business) reasonably acceptable to
Lenders as to the capability of Borrower and Guarantors to conduct its and their
businesses and operations before, on and after January 1, 2000 without
experiencing a Year 2000 Problem causing a Material Adverse Effect. Borrower
represents and warrants that it has a reasonable basis to believe that no Year
2000 Problem will cause a Material Adverse Effect.
5.11 SEC Filings; Financial Statements.
(A) Borrower has timely filed and made available to Lenders
all SEC Documents required to be filed by Borrower since January 1, 1995 (the
"Borrower SEC Reports"). Borrower SEC Reports (i) at the time filed, complied in
all respects with the applicable requirements of the Securities Laws and other
applicable laws and (ii) did not, at the time they were filed (or, if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing) contain any untrue statement of a material fact or omit to state a
material fact required to be stated in such Borrower SEC Reports or necessary in
order to make the statements in such Borrower SEC Reports, in light of the
circumstances under which they were made, not misleading.
(B) Each of Borrower Financial Statements (including, in each
case, any related notes) contained in Borrower SEC Reports, including any
Borrower SEC Reports complied as to form in all material respects with the
applicable published rules and regulations of the SEC with respect thereto, was
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to such financial
statements or, in the case of unaudited interim statements, as permitted by Form
10-Q of the SEC), and fairly presented in all material respects the consolidated
financial position of Borrower and its Subsidiaries as at the respective dates
and the consolidated results of operations and cash flows for the periods
indicated, except that the unaudited interim financial statements were or are
subject to normal and recurring yearend adjustments which were not or are not
expected to be material in amount or effect.
5.12 Environmental. Except as set forth in Schedule 5.12:
(A) All facilities and property (including underlying
groundwater) owned or leased by Borrower or any of Guarantors have been, and
continue to be, owned or leased by Borrower and in compliance with all
Environmental Laws;
24
(B) there have been no past, and there are no pending or, to
Borrower's knowledge, threatened:
(1) claims, complaints, notices or requests for
information received by Borrower or any of Guarantors with respect to any
alleged violation of any Environmental Law, or
(2) complaints, notices or inquiries to Borrower or
any of Guarantors regarding potential liability under any Environmental Law;
(C) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by Borrower or any of
Guarantors that, singly or in the aggregate, have, or may reasonably be expected
to have, a Material Adverse Effect;
(D) Borrower and Guarantors have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or desirable for
their businesses;
(E) no property now or previously owned or leased by Borrower
or any of Guarantors is listed or proposed for listing (with respect to owned
property only) on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list of sites requiring investigation or
clean-up;
(F) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property now or
previously, owned or leased by Borrower or any Guarantor, which existed during
or prior to Borrower's or such Guarantor's ownership or tenancy, that, singly or
in the aggregate, have, or may reasonably be expected to have, a Material
Adverse Effect;
(G) neither Borrower nor any Guarantor has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list
or which is the subject of federal, state or local enforcement actions or other
investigations which may lead to material claims against Borrower or such
Guarantor thereof for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA;
(H) there are no polychlorinated biphenyls or friable asbestos
present at any property owned or previously owned or leased by Borrower or any
Guarantor, which existed during or prior to Borrower's or such Guarantor's
ownership or tenancy, that, singly or in the aggregate, have, or may reasonably
be expected to have, a Material Adverse Effect; and
(I) no conditions exist at, on or under any property now or
previously owned or leased by Borrower or any Guarantor, which existed during or
prior to Borrower's or such
25
Guarantor's ownership or tenancy, which, with the passage of time, or the giving
of notice or both, would give rise to liability under any Environmental Law.
5.13 Regulations G, U and X. Neither Borrower nor any Guarantor is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any Advances will be used for a
purpose which violates, or would be inconsistent with, Federal Reserve Board
Regulations G, U or X. Terms for which meanings are provided in Federal Reserve
Board Regulations G, U or X or any regulations substituted therefor, as from
time to time in effect, are used in this Section with such meanings.
5.14 Accuracy of Information. All factual information heretofore or
contemporaneously furnished by or on behalf of Borrower in writing to
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of Borrower or any Guarantor to
Administrative Agent or any Lender will be, true and accurate in every material
fact necessary to make such information not misleading.
5.15 Pension and Welfare Plans. During the twelve-consecutive month
period prior to the date of the execution and delivery of this Agreement and
prior to the date of any Advance hereunder, no steps have been taken to
terminate any pension plan, and no contribution failure has occurred with
respect to any pension plan sufficient to give rise to a Lien under section
302(f) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). No condition exists or event or transaction has occurred with respect
to any pension plan which might result in the incurrence by Borrower or any
member of a controlled group of any material liability, fine or penalty. Except
as disclosed in Schedule 5.15 ("Employee Benefit Plans"), neither Borrower nor
any member of the controlled group has any contingent liability with respect to
any post-retirement benefit under a welfare plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
VI. BORROWER'S COVENANTS.
---------------------
Borrower, and each of Guarantors, jointly and/or severally, as the case may be,
hereby covenants and agrees with Lenders that, so long as any of the Obligations
remain unsatisfied, each of them will comply with the following covenants:
6.01 Affirmative Covenants. Borrower (and, if applicable, Guarantors)
shall:
(A) Maintain and cause each of Guarantors to maintain its
corporate existence, keep its properties and the Collateral in good repair and
maintain adequate insurance against fire and other such risks as is customary in
the trade or as required by law and defend Lenders' security interest in the
Collateral against claims of third parties. Borrower shall provide
Administrative Agent with proof of such insurance on the Closing Date and from
time to time, as reasonably requested by Administrative Agent.
26
(B) Promptly pay and cause each Guarantor to pay all taxes,
unless contested in good faith, as well as all lawful claims for labor,
materials and supplies which, if not paid, might become a Lien or charge on
its properties.
(C) Furnish to Administrative Agent:
(1) Within ninety (90) days after the end of
each Fiscal Year, a true copy of a report on
Form 10-K duly filed with the SEC, as
required by the Securities Exchange Act of
1934, as amended.
(2) Within forty-five (45) days after the end of
each Fiscal Quarter, a true copy of a report
on Form 10-Q duly filed with the SEC, as
required by the Securities Exchange Act of
1934, as amended.
(3) Within forty-five (45) days from the end of
each Fiscal Quarter, a consolidating profit
and loss statement (income statement) for
Borrower prepared by its management and
certified by the Chief Executive Officer,
Chief Financial Officer or Chief Operating
Officer of Borrower, as follows: "We certify
that these financial statements are true and
correct and subject to year-end audit
adjustments."
(4) Within forty-five (45) days after the end of
each Fiscal Year of Borrower and each
Guarantor, individual balance sheets and
profit and loss statements (income
statements) for Borrower and each of
Guarantors;
(5) Within thirty (30) days after the end of
each Fiscal Quarter, a certificate from
Borrower stating that no Event of Default
under this Agreement has occurred and that
all covenants are met, with the actual
covenant position listed as of the close of
the Fiscal Quarter. Such certificate will be
issued by the Chief Executive Officer, the
Chief Financial Officer or the Chief
Operating Officer of Borrower; and
(6) Within one hundred twenty (120) days after
the end of each Fiscal Year of Borrower and
each Guarantor, Financial Statements and
supplemental consolidating information and
independent auditor's report of Borrower and
each Guarantor.
(D) Upon request, furnish to Administrative Agent copies of
all information furnished by Borrower or any Guarantor to the shareholders of
Borrower or of any Guarantor, or to any governmental authority or general press
release within 24 hours of release.
27
(E) Furnish to Administrative Agent, within seven (7) business
days, copies of any new contract of Borrower or any Guarantor in any location,
where the security interest in such contract rights has not been perfected in
favor of Lenders. Within forty five (45) days of the commencement of such
contract(s), Borrower is to provide Lenders with an inventory list of all titled
and non-titled equipment transferred into such state territory or province.
Should Borrower or any Guarantor contemplate entering into a contract outside
the United States, its territories or Canada, Borrower must seek prior written
approval from all Lenders before any assets of Borrower or any Guarantor are
removed from such jurisdictions.
(F) Furnish to Administrative Agent such other information
with regard to the operations and affairs of Borrower or any Guarantor as
Administrative Agent may reasonably request within thirty (30) days of
Borrower's receipt of such request.
(G) At Administrative Agent's request, make available for
inspection by duly authorized representatives of Lenders any of its books and
records, any of the books and records of any Guarantor, any of the Collateral,
and any information regarding its business affairs and financial condition or
that of any Guarantor, within a reasonable time after written request therefor.
(H) Collect its accounts and sell its services and permit
Guarantors to sell their respective accounts or services only in the ordinary
course of business.
(I) Give immediate notice to Administrative Agent of: (1) any
litigation or proceeding in which it or any Guarantor is a party if an adverse
decision therein would require it or any Guarantor to pay more than Five Hundred
Thousand US Dollars ($500,000.00), or deliver assets the aggregate value of
which exceeds such sum (whether or not the claim is considered to be covered by
insurance); and (2) the institution of any other suit or proceeding involving it
or any Guarantor that might have a Material Adverse Effect.
(J) Pay when due or, with respect to any Guarantor, cause to
be paid when due (or within applicable grace periods) all Indebtedness owed to
third persons, except when the amount thereof is being contested in good faith
by appropriate proceedings, and adequate reserves therefor have been set aside
on the appropriate books of Borrower or Guarantor. If Borrower or any Guarantor
defaults in the payment of any principal (or installment thereof) of, or
interest on, any such Indebtedness, Lenders shall have the right in their
discretion, to pay such interest or principal for the account of such Borrower
or Guarantor and be reimbursed, on demand, by Borrower.
(K) Notify Lenders immediately if it becomes aware of the
occurrence of any Default or Event of Default.
(L) Notify Administrative Agent thirty (30) days in advance of
any change in its or any Guarantor's address, or in the location of its
principal place of business or location of Collateral.
(M) Maintain at all times the following financial covenants,
all of which shall be calculated for Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP:
28
(1) Maintain a ratio of total liabilities to Tangible
Net Worth of not more than 2.50:1. Such ratio shall be calculated by dividing
Borrower's total liabilities by Borrower's Tangible Net Worth. "Tangible Net
Worth" shall mean Borrower's shareholders' equity less Borrower's intangible
assets, net of accumulated amortization.
(2) Maintain a quick ratio of not less than .6:1 or a
current ratio of not less than 1.4:1. The quick ratio shall be calculated by
dividing the sum of Borrower's cash and net accounts receivable by Borrower's
current liabilities. The current ratio shall be calculated by dividing
Borrower's current assets by Borrower's current liabilities.
(3) Maintain a maximum Total Funded Debt to EBITDA
ratio of 4:1. Such ratio shall be calculated on any given date by dividing
Borrower's Total Funded Debt on that date by Borrower's EBITDA on that date.
(4) Maintain a maximum Senior Funded Debt to EBITDA
ratio of 3:1. Such ratio shall be calculated on any given date by dividing
Borrower's Senior Funded Debt on that date by Borrower's EBITDA on that date.
(5) Maintain a fixed charge coverage ratio not less
than 1.35:1. The fixed charge coverage ratio shall be an amount equal to
Borrower's EBITDAR minus Borrower's expenditures for maintenance of leased and
owned equipment divided by the sum of total interest expense plus rent expense
plus dividends on preferred stock plus current maturities of Borrower's long
term debt and capital leases.
(6) Limit cash dividends to fifty per cent (50%) of
each Fiscal Year's net income, as shown in Borrower's or Guarantor's audited
Financial Statements, as the case may be. Such dividends shall only be paid
after the close of the corresponding Fiscal Year. Stock splits and stock
dividends shall not be restricted.
(N) Clear all Liens encumbering the assets of any newly
acquired Subsidiary within ninety (90) days of the consummation of any such
acquisition.
(O) Perform and observe, and cause each Guarantor to perform
and observe, all agreements, covenants, obligations, terms and conditions of
this Agreement, the Notes, any Collateral Document or other instrument executed
in connection with this Agreement, the Notes, any Collateral Document and any
Advance.
(P) Duly observe, conform and comply with all laws, decisions,
judgments, rules, regulations and orders of all governmental authorities
relative to the conduct of its businesses, its properties, and Collateral,
except those being contested in good faith by appropriate proceedings diligently
pursued; and obtain, maintain and keep in full force and effect all governmental
licenses, authorizations and permits necessary to the proper conduct of its
businesses.
29
(Q) Cause each newly acquired Subsidiary to become a Guarantor
hereunder and to execute all documents and instruments necessary to effect such
guarantee or as may otherwise be requested by Administrative Agent within ninety
(90) days following the consummation of such acquisition.
(R) Provide to Administrative Agent, on a quarterly basis,
with an updated list of all new Subsidiaries acquired, or field offices opened,
by Borrower or Guarantor containing their respective locations and addresses.
(S) Provide Administrative Agent, on a semi-annual basis, a
list of any additional assets titled or untitled acquired or sold by Borrower or
any Guarantor and the location of such assets.
(T) Borrower and/or Guarantors shall use the proceeds from the
Advances for the purpose or purposes set forth in Article II of this Agreement.
6.02 Negative Covenants.
Borrower shall not, nor shall it permit any Guarantor directly or indirectly,
to:
(A) Incur, create, assume or permit to exist any Indebtedness,
except for:
(1) Indebtedness contemplated by this Agreement;
(2) Indebtedness, up to Two Million Five Hundred
Thousand US Dollars ($2,500,000.00),
calculated on a consolidated basis in
accordance with GAAP, for the specific
purpose of amortizing capital leases;
(3) Indebtedness, up to Fifteen Million US
Dollars ($15,000,000.00) per year,
calculated on a consolidated basis in
accordance with GAAP, for the specific
purpose of making payments under operating
leases, and in existence as of the Closing
Date;
(4) Indebtedness incurred in respect of
contracts which require that Borrower
perform the work under a performance bond or
provide a bid bond in order to bid for a
project;
(5) Indebtedness incurred in the ordinary course
of business for the deferred purchase price
of property and assets aggregating,
calculated on a consolidated basis in
accordance with GAAP, not more than $2.5
million at any one time outstanding;
30
(6) current accounts payable, accrued expenses
and customer advance payments incurred in
the ordinary course of business; and
(7) Indebtedness created under Hedging
Instruments acceptable to Administrative
Agent in its discretion in an amount equal
to or less than 100% of the principal amount
of outstanding Advances.
(B) Incur, create or permit to exist any Lien or other
encumbrance on any of its assets other than:
(1) Deposits under social security laws, or to
secure the performance of bids, tenders,
contracts, or leases, statutory obligations
and surety or appeal bonds;
(2) Liens imposed by law arising in the ordinary
course of business and Liens arising out of
a judgment award not exceeding Two Hundred
Fifty Thousand US Dollars ($250,000) when an
appeal is in process, except where an
insurance company, reasonably acceptable to
Lenders, acknowledges coverage in writing to
Lenders;
(3) Liens represented by capital leases referred
to in subsection 6.02 (A) (2) in existence
as of the Closing Date; and
(4) Permitted Liens.
(C) Sell, lease, transfer or otherwise dispose of all of or a
substantial (as defined below) part of its properties or assets (including,
without limitation, Borrower's shares of capital stock in Guarantors), or allow
any other corporation to acquire all or substantially all of its property or
assets. Sales of assets in the normal course of Borrower's or Guarantor's
business shall be permitted. If any transfer of assets among Borrower and
Guarantors, not in the normal course of business, is contemplated, Lenders must
give prior written approval of same. For purposes of this Section 6.02(C),
"substantial" shall mean ten percent (10%) or more of Borrower's Tangible Net
Worth, calculated on a consolidated basis in accordance with GAAP.
(D) Make any investment in, or purchase any stock or other
securities or evidence of indebtedness of any Person, or place funds on deposit
with any Person or financial institution, except that Borrower or any Guarantor
may make investments in their Subsidiaries and may purchase, to the extent owned
by the Borrower or such Guarantor free and clear of all Liens and having a
maturity of not greater than 360 days from the date of acquisition thereof: (i)
readily marketable direct obligations of the Government of the United States or
any agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States, (ii)
insured certificates of deposit of or time deposits with any commercial bank
that (a) is a Lender or a member of the Federal Reserve System, (b) is organized
under the laws of the United States or any State thereof and (c) has combined
capital and surplus of at least $1 billion or (iii) commercial paper in an
aggregate amount of no more than $7.5 million
31
per issuer outstanding at any time, issued by any corporation organized under
the laws of any State of the United States and rated at least "Prime-1" (or the
then equivalent grade) by Moody's Investors Services, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Corporation.
(E) Sell, discount or otherwise dispose of notes, accounts
receivable or other obligations owing to Borrower or any Guarantor, with or
without recourse, other than for the purpose of collection in the ordinary
course of business.
(F) Change its name, enter into any reorganization or
recapitalization or reclassify its capital stock.
(G) Prepay any Indebtedness, including Indebtedness for
borrowed money and Indebtedness secured by any of its assets (except for
prepayments of its Indebtedness or its Obligations permitted or required under
this Agreement), or enter into or modify any agreement as a result of which the
terms of payment of any of the foregoing Indebtedness are waived or modified;
provided, however, that Borrower and Guarantors, as a group, shall be permitted
to prepay Indebtedness existing as of April 27, 1999, up to a total aggregate
amount not to exceed $5,500,000.
(H) Furnish Lenders any certificate or other document that
will contain any untrue statement of material fact or that will omit to state a
material fact necessary to make it not misleading in light of the circumstances
under which it was furnished.
(I) Permit any event which results in a Material Adverse
Effect that, in the reasonable judgment of Majority Lenders, makes the
continuation of the Second Amended Facility no longer financially feasible;
provided, however, that Lenders have provided written notice to Borrower of
their judgment that such a Material Adverse Effect has occurred and Borrower,
within thirty (30) days of such notice fails to cure to Lenders' reasonable
satisfaction.
(J) Permit any future corporate acquisitions of Borrower
unless:
(1) During the last four Fiscal Quarters
immediately preceding such acquisition, the
aggregate amount of corporate acquisitions
of Borrower does not exceed Seventy-five
Million US Dollars (US$75,000,000.00);
(2) The cash component of the purchase price of
any corporation sought to be acquired by
Borrower (a "Target") shall be less than 20%
of Borrower's most recent quarterly Tangible
Net Worth;
(3) The purchase price of each Target,
regardless of Borrower's Tangible Net Worth,
shall not have a cash payment component in
excess of $35.0 million;
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(4) The purchase price to be paid (in cash,
stock and/or otherwise) for the acquisition
of a Target when added to the purchase price
of all other Targets acquired during the
previous four Fiscal Quarters, shall not
exceed Seventy-five Million US Dollars (US$
75,000,000.00), in the aggregate;
(5) The purchase of Target is anticipated to be
accretive within twelve (12) months
following the date such acquisition is
consummated;
(6) There shall be no litigation pending or
threatened against the proposed Target
which, in the aggregate, would result in
damages being awarded against such Target in
excess of Two Hundred Fifty Thousand Dollars
($250,000.00);
(7) There are no known or suspected violations
of any Environmental Law with respect to
Target that would require remedial action at
a cost in excess of One Hundred Thousand US
Dollars ($100,000.00);
(8) The acquisition at closing, on a pro forma
consolidated basis, shall not result in a
Default or an Event of Default;
(9) The primary business of Target is in the
same business line as that of Borrower; and
(10) For acquisitions involving goodwill,
Borrower, no later than five (5) business
days prior to the anticipated closing date
of the acquisition, shall provide to
Administrative Agent the proforma
consolidated covenant computations giving
effect to the anticipated acquisition.
VII. DEFAULT
-------
7.01 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default hereunder:
(A) Borrower or any Guarantor shall fail to pay on the date
when due, any installment of principal or interest, or, when due, any other
amount payable hereunder or any other Obligation due from such Borrower or such
Guarantor to Lenders.
(B) (i) Borrower or any Guarantor shall fail to perform or
observe any term, covenant or agreement contained in Section 6.01(A), (C), (D),
(E), (F), (G), (I), (K), (L), or (S) or Section 6.02, or (ii) Borrower or any
Guarantor shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement, or in any Collateral Document, on its part to be
performed or observed if such failure shall remain unremedied for 20 days after
written notice thereof shall have been given to Borrower by Administrative Agent
or any Lender.
33
(C) Borrower or any Guarantor shall fail to pay any
Indebtedness in the aggregate amount in excess of $1.0 million, due any third
person, and such failure shall continue beyond any applicable grace period, or
Borrower shall allow any other event of default under any agreement binding
Borrower and/or any Guarantor.
(D) Any Financial Statement, representation, warranty or
certificate made or furnished by Borrower or any Guarantor to Lenders in
connection with this Agreement, or as inducement to Lenders to enter into this
Agreement, or in any separate statement or document to be delivered hereunder to
Lenders, shall be materially false, incorrect or incomplete when made.
(E) Borrower or any Guarantor shall admit its inability to pay
its debts as they mature, or make an assignment thereof for the benefit of its
creditors.
(F) Proceedings in bankruptcy, or for reorganization of
Borrower, or any Guarantor or for the readjustment of any its debts, under the
U.S. Bankruptcy Act, as amended, or any part thereof, or under any other laws
for the relief of debtors, now or hereafter existing, shall be commenced by or
against Borrower or any Guarantor and, if commenced without the application,
approval or consent of Borrower or such Guarantor, shall not be discharged
within thirty (30) days of commencement.
(G) A receiver or trustee shall be appointed for Borrower or
any Guarantor or for any substantial part of its assets, or any proceedings
shall be instituted for the dissolution or the full or partial liquidation of
Borrower or any Guarantor, and, if commenced without the application, approval
or consent of Borrower or such Guarantor, such receiver or trustee shall not be
discharged within thirty (30) days of his/her appointment, or such proceedings
shall not be discharged within thirty (30) days of commencement.
(H) Borrower or any Guarantor shall discontinue business or
materially change the nature of its business.
(I) Borrower or any Guarantor shall suffer final judgments for
payment of money aggregating in excess of Two Hundred Fifty Thousand US. Dollars
($250,000) and shall not discharge the same within a period of thirty (30) days,
unless, pending further proceedings, execution has not been commenced or has
been stayed.
(J) A judgment creditor of Borrower shall obtain possession of
any of the Collateral by any means, including but without limitation, levy,
distraint, replevin or self-help.
(K) An event that shall result in a Material Adverse Effect
has occurred.
(L) A change in Control of Borrower or any Guarantor as such
Control existed at the Closing Date shall occur.
(M) This Agreement, the Notes, any of the Guarantees or any
Collateral Document shall be terminated other than by reason of a breach by
Lenders or shall cease to be in
34
full force or effect or any action shall be taken, other than by Lenders, to
assert the invalidity thereof.
(N) Borrower's or any Subsidiary's merger or consolidation
with any Person or the merger of any Person into Borrower or into any of its
Subsidiaries, without the prior written consent of Majority Lenders, except that
(i) any Subsidiary of the Borrower may merge into or consolidate with any other
Subsidiary of Borrower; provided that, in the case of any such consolidation,
the Person formed by such consolidation shall be a Subsidiary of Borrower, and
(ii) any of the Borrower's Subsidiaries may merge into Borrower.
(O) A default by Borrower and/or any Guarantor under any
Hedging Instrument.
7.02 Acceleration. Immediately and without notice, upon the
occurrence of any Event of Default specified in the foregoing Sections, all of
the obligations of Lenders to make Advances shall terminate, and all Obligations
shall, at the option of Majority Lenders, immediately become due and payable
without presentment, demand, protest, notice or further action of any kind, all
of which are hereby expressly waived by Borrower and each Guarantor.
7.03 Remedies. After any acceleration, as provided for in Section
7.02 hereof, Administrative Agent, on behalf of Lenders shall have, in addition
to the rights and remedies given it by this Agreement, the Notes and the
Collateral Documents, all those rights and remedies allowed by all applicable
laws including, without limitation, the Uniform Commercial Code or similar law
as enacted in any jurisdiction in which any Collateral may be located. Without
limiting the generality of the foregoing, Administrative Agent on behalf of
Lenders may immediately, without demand of performance and without other notice
(except as specifically required by this Agreement or the Collateral Documents)
or demand whatsoever to Borrower or any Guarantor, all of which are hereby
expressly waived, to the extent permitted by applicable law, by Borrower, and
without advertisement, sell at public or private sale or otherwise realize upon,
the whole or, from time to time, any part of the Collateral, or any interest
which Borrower or any Guarantor may have therein. After deducting from the
proceeds of sale or other disposition of the Collateral all expenses (including
all reasonable expenses for legal services) Administrative Agent shall
distribute to Lenders their respective share of such proceeds and Lenders shall
apply such proceeds toward the satisfaction of Borrower's Obligations under this
Agreement. Any remainder of the proceeds after satisfaction in full of the
Obligations shall be distributed as required by applicable laws. Notice of any
sale or other disposition shall be given to Borrower at least twenty (20) days
before the time of any intended public sale or of the time after which any
intended private sale or other disposition of the Collateral is to be made,
which Borrower hereby agrees shall constitute reasonable notice of such sale or
other disposition. Borrower agrees to assemble and deliver, at its own expense,
the Collateral at such place or places as Administrative Agent on behalf of
Lenders shall designate. At any such sale or other disposition, Administrative
Agent on behalf of Lenders or any Lender may, to the extent permissible under
applicable laws, purchase the whole or any part of the Collateral, free from any
right of redemption on the part of Borrower or any Guarantor.
35
VIII. FUNDING AND PAYMENTS
--------------------
8.01 Advances. Amounts to be advanced by Lenders to Borrower under this
Agreement shall be made available by Administrative Agent to Borrower in
accordance with the provisions of Section 2.07 or, with respect to payments
under the "A" Line of Credit, will be funded or reimbursed to Administrative
Agent in accordance with the provisions of Section 2.01(G). Borrower shall be
deemed to have borrowed the relevant amount when such Advances are made
available to Borrower by Administrative Agent at Administrative Agent's address
set forth in Section 11.06.
8.02 Payments by Borrower. All payments by Borrower under this
Agreement shall be made to Administrative Agent on behalf of Lenders not later
than 10:30 a.m. Miami time on the relevant due date in immediately available
funds, to such account as such Administrative Agent on behalf of Lenders shall
have previously notified to Borrower. Administrative Agent shall forward to each
Lender, such Lender's Pro Rata Share of such payment on the same day as it is
received.
8.03 Banking Days. If any sum would otherwise become due for payment
hereunder on a non-Banking Day that sum shall become due on the next following
Banking Day, except that if any repayment would then become due in another
calendar month such repayment shall become due on the immediately preceding
Banking Day. Interest shall be adjusted accordingly.
8.04 Evidence of Debt. Lenders shall each maintain on its books, in
accordance with its usual practice, a set of accounts recording the amounts from
time to time owing by Borrower hereunder. In any legal proceeding and otherwise
for the purposes of this Agreement the entries made in such accounts shall, in
the absence of manifest error, be conclusive and binding on Borrower as to the
existence and amounts of the obligations of Borrower recorded therein.
8.05 Certificate Conclusive and Binding. Where any provision of this
Agreement provides that Lenders may certify or determine an amount or rate
payable by Borrower, a certificate by Lenders as to such amount or rate shall be
conclusive and binding on Borrower in the absence of manifest error.
IX. LENDERS AND ADMINISTRATIVE AGENT
--------------------------------
9.01 Appointment. Each Lender hereby irrevocably appoints
Administrative Agent to act as its Administrative Agent for the purposes set out
in this Agreement and irrevocably authorizes Administrative Agent to take such
action on its behalf and to exercise and enforce such rights, powers and duties
as are expressly or by implication delegated to Administrative Agent by the
terms hereof and such rights, powers and duties as are reasonably incidental
thereto.
9.02 Nature of Duties. In respect of its duties and functions
hereunder, Administrative Agent shall be considered to be acting solely as an
agent of Lenders in an administrative capacity only and shall not be deemed to
be a trustee of any Lender or an agent or trustee of Borrower for any purpose.
Agent shall have no duties or obligations except those provided for in this
Agreement.
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9.03 No Liability to Borrower. Administrative Agent shall have no
liability or obligation to Borrower as a result of any failure or delay by any
Lender or any other party in performing its respective obligations under this
Agreement.
9.04 Liability. Neither Administrative Agent, in its capacity as
Administrative Agent, nor any of its directors, officers, employees or agents
shall be liable for (A) the truth of any representation or warranty made by
Borrower or Guarantors in this Agreement or any other document delivered in
connection with this Agreement, (B) the validity or enforceability of this
Agreement or any such document, (C) any failure of Borrower or Guarantors to
fulfill any of its respective obligations under this Agreement or any such
document or (D) any action taken or omitted to be taken in connection with this
Agreement, the Notes, or the Collateral Documents absent gross negligence or
willful misconduct. Administrative Agent shall be entitled to rely in good faith
on any communication or document believed by it to be genuine and to have been
sent or signed by the proper Person or Persons and on the opinions and
statements of any legal counsel or other professional advisors selected by it
and shall not be liable to any other Person for any consequence of any such
reliance.
9.05 Information about Borrower and Guarantors. Each Lender has
investigated and evaluated, and shall continue to investigate and evaluate, the
creditworthiness of Borrower and Guarantors and such other issues and
information as it has judged appropriate and prudent in connection with its
commitment to lend hereunder and the making of its Advances. Except as expressly
provided herein, Administrative Agent shall not have any duty to provide any
Lender with any credit or other information with respect to Borrower or
Guarantors, whether that information comes into its possession before or after
the disbursement of any Advance; provided, however, that Administrative Agent
shall disseminate all material information received by it from the Borrower or
any Guarantor to Lenders.
9.06 Duties in Respect of Events of Default. Administrative Agent shall
not be under any obligation to inquire as to the performance by Borrower or
Guarantors of their respective obligations under this Agreement, the Notes or
the Collateral Documents; provided, however, that Administrative Agent shall
give prompt notice to each Lender of any Default or Event of Default of which it
receives actual notice in its capacity as an Administrative Agent hereunder.
9.07 Covenant to Reimburse. Each Lender shall reimburse Administrative
Agent (to the extent not reimbursed by Borrower or Guarantors) on demand for
that Lender's pro rata share of all expenses incurred by Administrative Agent in
the exercise of its responsibilities hereunder including, without limitation,
the reasonable fees and expenses of legal and other professional advisors,
except to the extent that such expenses are incurred as a result of
Administrative Agent's willful misconduct or gross negligence.
9.08 Non-Receipt of Funds by Administrative Agent. Unless
Administrative Agent has received written notice from Borrower before the date
on which Borrower is required hereunder to make a payment to Administrative
Agent that Borrower does not intend to make that payment as and when due,
Administrative Agent may assume that Borrower has so made that payment and
37
may (but shall not be required to) make available to Lenders on the date that
payment is due an amount equal to that payment. If Borrower has not in fact made
that payment to Administrative Agent, each Lender shall, on demand, repay to
Administrative Agent the amount so made available to it, together with interest
on that amount accrued for each day from and including that payment date to but
excluding the date of repayment at a rate per annum equal to the Federal Funds
Rate for that date. On the date of disbursement of an Advance or issuance of a
Letter of Credit, the Administrative Agent shall be entitled to assume that each
Lender (other than any Lender that has given Administrative Agent notice to the
contrary) has made funds available to Administrative Agent as required
hereunder, and Administrative Agent may (but shall not be required to) credit
funds to Borrower in an amount equal to the aggregate of the principal amount of
Advances to be made on that date by all Lenders from which no such notice has
been received. If any Lender that has not given that notice fails to make funds
available as required hereunder and Administrative Agent has credited to
Borrower an amount equal to that aggregate, Administrative Agent shall be
entitled at its option to recover from either that Lender or Borrower, on
demand, an amount equal to the Advance that was to have been made by that Lender
on that date, together with interest on that amount accrued for each day from
and including the applicable date of the Advance to but excluding the date of
that recovery at a rate per annum equal to the Federal Funds Rate for that day.
9.09 Assignments.
(A) Each Lender may assign to one or more persons all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the pro rata amount of Advances owing to it
and the interest in the Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement, (ii) except in the case of an assignment
to a person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than Three Million US
Dollars ($3,000,000.00) or an integral multiple of One Million US Dollars
($1,000,000.00) in excess thereof, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute
and deliver to Administrative Agent, for its acceptance and recording in its
records, an Assignment and Acceptance in the form of Exhibit H attached hereto,
together with a processing and recordation fee of $5,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement and the Intercreditor
Agreement (as defined herein) (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto).
38
(B) By executing and delivering an Assignment and Acceptance, Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance or observance
by Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
Financial Statements and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon Administrative Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes Administrative Agent to
take such action on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Lender.
(C) Administrative Agent shall maintain at its address referred to in
Section 11.06 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of Lenders
and the Commitment of, and principal amount of the Advances owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and Borrower,
Administrative Agent and Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(D) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit H hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to Borrower. Within five (5) Business Days
after its receipt of such notice, Borrower, at its own expense, shall execute
and deliver to Administrative Agent in exchange for the Note a new Note to the
order of Lenders, including such Eligible Assignee. Such new Note shall be dated
the effective date of such Assignment and Acceptance.
39
(E) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
9.10 Resignation and Removal of Administrative Agent; Successors.
Administrative Agent may resign at any time by giving notice to Lenders and
Borrower or be removed only with cause by Majority Lenders by notice to
Administrative Agent. Upon the giving of either such notice, Majority Lenders
shall have the right to appoint a successor Administrative Agent. If a successor
has not been so appointed and accepted that appointment on or before the
thirtieth (30th) day after that notice is given, Administrative Agent may
appoint a successor agent, which shall be a bank having a combined capital and
surplus of at least $250,000,000 or the equivalent of that amount in another
currency. Upon the acceptance by a successor Administrative Agent of its
appointment as Administrative Agent hereunder and notice of that acceptance to
Lenders and Borrower, the successor Administrative Agent shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent (as Administrative Agent and not as Lender), and the
retiring Administrative Agent shall be discharged from any further duties or
obligations as Administrative Agent under this Agreement. The provisions of this
Article shall continue to inure to the benefit of Administrative Agent that has
resigned or been removed in respect of any action taken or not taken by it as
Administrative Agent hereunder.
X. INDEMNITIES, SET-OFF AND PRO RATA SHARING
-----------------------------------------
10.01. Commitments; Pro Rata Amounts. Administrative Agent shall
promptly notify each Lender of each Request for Advance and Request for Letter
of Credit. Subject to the provisions of this Agreement, each Lender shall make
available its Pro Rata Share in the relevant Advance or Letter of Credit in
accordance with Sections 2.01, 2.07, 3.02 and 8.01.
10.02 General Indemnity. Borrower and each Guarantor shall indemnify
Administrative Agent and each Lender and hold Administrative Agent and each
Lender and their respective successors and assigns absolutely harmless from and
against all losses, liabilities, damages, costs, expenses or obligations which
Administrative Agent or such Lender may incur as a consequence of any Event of
Default or any other breach by Borrower or any Guarantor of any of their
obligations under this Agreement, any Note, Collateral Document or any Guarantee
or otherwise in connection with this Agreement, except to the extent that such
losses, liabilities, damages, costs, expenses or obligations shall result from
the gross negligence or willful misconduct of Administrative Agent or such
Lender. Without intending to limit the remedies available to Lenders with
respect to the enforcement of their indemnification rights as stated herein or
as stated in any Collateral Document (other than, and to the extent of, any
claim or demand resulting from the gross negligence or willful misconduct of
Administrative Agent or a Lender), in the event any claim or demand is made or
any other fact comes to the attention of a Lender in connection with, relating
40
or pertaining to, or arising out of the transactions contemplated by this
Agreement, which Lenders believe might in any manner result in the liability of
Lenders, Borrower and Guarantors shall, immediately upon receipt of written
notification of any such claim or demand, assume in full the personal
responsibility for and the defense of any such claim or demand and pay in
connection therewith any loss damage, deficiency, liability or obligation,
including without limitation, legal fees and court costs incurred in connection
therewith prior to the institution of legal proceedings, at all trial levels and
levels of appeal. In the event of court action in connection with any such claim
or demand, Borrower and Guarantors shall assume in full the responsibility for
the defense of any such action and shall immediately satisfy and discharge any
final decree or judgment rendered therein. Lenders may, at their sole
discretion, make any payments sustained or incurred by reason of the foregoing,
and Borrower and Guarantors shall immediately repay to Lenders in cash the
amount of such payment, with interest thereon at the maximum lawful rate from
the date of such payment. Lenders shall have the right to join Borrower and/or
any Guarantor as a party defendant in any legal action brought against them, and
Borrower and each Guarantor hereby consents to the entry of any order making it
a party defendant to any such action.
10.03 Set-Off. If an Event of Default has occurred, each Lender shall
have the right, without notice to Borrower or any other Person, to set-off and
apply any credit balance on any account (whether subject to notice or not and
whether matured or not and in whatever currency) of Borrower or of any Guarantor
with such Lender or any affiliate thereof, and any other Indebtedness owing by
such Lender or other affiliate to Borrower or such Guarantor, against the
liabilities of Borrower or such Guarantor under this Agreement. Each Lender
shall forthwith notify each other Lender of any exercise of its rights under
this Section. This Section shall not affect any general or banker's Lien, right
of set-off or other right to which any Lender may be entitled.
10.04 Pro Rata Sharing. Except as set forth in Section 1.06 of the
Second Amended and Restated Intercreditor Agreement by and among Lenders of even
date herewith as the same may be amended from time to time (the "Intercreditor
Agreement"), if at any time any Lender receives any amount in respect of sums
due from Borrower under this Agreement whether by way of voluntary or
involuntary payment, set-off or otherwise, it will promptly pay the amount so
received to the other Lenders pro rata in accordance with their respective Pro
Rata Share in such amount. Such Lender shall treat such amount as if it were a
payment by Borrower directly to all Lenders on account of sums due from Borrower
hereunder so that, as between Borrower and Lender which originally received the
amount, the amount shall be treated as not having been paid and such Lender
shall retain all its rights against Borrower or otherwise in respect of such
amount (except to the extent of any sum retained by it as its pro rata share).
Notwithstanding the foregoing provisions of this section:
(A) a Lender shall not be required to share any amount which
it has received as a result of any legal proceedings commenced in order to
recover sums owing to it under this Agreement with any other Lender which has a
legal right to but does not join in such legal proceedings after having been
given reasonable opportunity so to do and which does not commence and diligently
pursue separate legal proceedings for that purpose; and
41
(B) if any Lender is required to repay to Borrower any part of
an amount originally received by it and shared pursuant to this Clause, the
other Lender shall make funds available on a pro rata basis to reimburse such
Lender for the amount required to be repaid (less the appropriate portion of any
sum retained by such Lender in respect of such amount).
XI. MISCELLANEOUS
-------------
11.01 Construction. The provisions of this Agreement shall be in
addition to those of any guarantee, pledge or security agreement, note or other
evidence of liability held by any of Lenders, all of which shall be construed as
complementary to each other. Nothing herein contained shall prevent Lenders from
enforcing any or all other notes, guarantees, pledges or security agreements in
accordance with their respective terms.
11.02 Further Assurance. Borrower hereby agrees that it shall, and
shall cause its Subsidiaries, present or future, to, from time to time, execute
and deliver to Lenders such additional documents and will provide such
additional information as Lenders may reasonably require to carry out the terms
of this Agreement and be informed of the status and affairs of Borrower and its
Subsidiaries.
11.03 Enforcement and Waiver by Administrative Agent on Behalf of
Lenders. Administrative Agent on behalf of Lenders, shall have the right at all
times to enforce the provisions of this Agreement, the Notes and the Collateral
Documents in strict accordance with the terms hereof and thereof,
notwithstanding any conduct or custom on the part of Lenders in refraining from
so doing at any time or times. The failure of Administrative Agent on behalf of
Lenders or any Lender at any time or times to enforce their respective rights
under such provisions, strictly in accordance with the same, shall not be
construed as having created a custom in any way or manner contrary to specific
provisions of this Agreement, the Notes or the Collateral Documents or as having
in any way or manner modified or waived the same. All rights and remedies of
Lenders are cumulative and concurrent and the exercise of one right or remedy
shall not be deemed a waiver or release of any other right or remedy.
11.04 Agency Fee and Expenses of Lenders. Borrower shall pay
Administrative Agent, for its own account, an agency fee of FIFTEEN THOUSAND US
Dollars ($15,000.00) per annum, on the Closing Date and, in advance, on each
anniversary of the Closing Date thereafter until this Agreement is terminated
and all Obligations hereafter have been satisfied in full. In addition, Borrower
shall, on demand, reimburse Administrative Agent and Lenders for all expenses,
including the reasonable fees and expenses of legal counsel for Administrative
Agent incurred by Administrative Agent and Lenders and applicable taxes or
charges imposed by any governmental authority, incurred by Administrative Agent
and Lenders in connection with the preparation, administration, amendment and
modification of this Agreement, the Notes and the Collateral Documents. Borrower
further agrees to pay on demand all costs and expenses of Administrative Agent
and Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement and the Collateral Documents
including, without limitation, reasonable fees and
42
expenses of counsel for Administrative Agent and each Lender in connection with
the enforcement of rights under this Section 11.04.
11.05 Annual Facility Fee. Borrower shall pay Administrative Agent, for
allocation among Lenders in accordance with Section 1.06 of the Intercreditor
Agreement, a facility fee in the amount of ONE HUNDRED THIRTY-FIVE THOUSAND US
DOLLARS ($135,000.00) per annum, on the Closing Date and, in advance, on each
anniversary of the Closing Date thereafter until this Agreement is terminated
and all Obligations shall be satisfied in full.
11.06 Notices. Any notices, reports, requests, consents or other
communications required or permitted by this Agreement shall be in writing and
shall be deemed delivered if delivered in person or if sent by certified mail,
postage prepaid, return receipt requested, or telegraph, as follows, unless such
address is changed by written notice hereunder. All notices shall be effective
upon receipt.
(A) If to Borrower:
DYCOM INDUSTRIES, INC.
Suite 600
4440 PGA Blvd
Palm Beach Gardens, FL 33410
Attention: Thomas R. Pledger, Executive Chairman
Douglas Betlach, Chief Financial Officer
With Copy to:
Alberto Luzarraga, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
(B) If to Lenders, in care of Administrative Agent:
Dresdner Bank Lateinamerika
Aktiengesellschaft, Miami Agency
P.O. Box 01-6039
801 Brickell Avenue
Miami, FL 33131
Attention: Frank Huthnance, Vice-President. and
Attention: Theodore R. Walters, Esq., Vice-President
and General Counsel
With Copy to:
Baker & McKenzie
43
Suite 1900
1200 Brickell Avenue
Miami, FL 33131-2827
Attention: Charles Lea Hume, Esq.
J. Mario Fontes. Jr., Esq.
11.07 Waiver and Release by Borrower. To the maximum extent permitted
by applicable laws, Borrower:
(A) Waives:
(1) protest of all commercial paper at any time
held by Lenders on which Borrower is in any
way liable; and
(2) notice and opportunity to be heard, after
acceleration in the manner provided in
Section 7.02, before exercise by Lenders of
the remedies of self-help, set-off, or of
other summary procedures permitted by any
applicable laws or by any agreement with
Borrower, and, except where required by this
Agreement or by any applicable laws, notice
of any other action taken by Lenders; and
(B) Releases Lenders and their respective officers, attorneys,
agents and employees from all claims for loss or damage caused by any act or
omission on the part of any of them, provided, however, that nothing in this
paragraph shall be construed in any fashion, as a release of Lenders and their
respective officers, attorneys, agents and employees from (1) their contractual
obligations created hereunder and/or pursuant to any other instrument executed
in connection with the Advances, and/or (2) resulting directly from its gross
negligence or willful misconduct.
11.08 Participation. Each Lender may sell participations to one or more
banks or other entities (other than the Borrower or any of its Affiliates) in or
to all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the interest in the Notes held by it); provided, however, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of the interest in any such Note for all purposes of this Agreement, (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone
44
any date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation.
11.09 Applicable Law. The laws of the State of Florida, excluding its
choice-of-law rules, shall govern the validity, construction and interpretation
of this Agreement, and the rights and remedies of the parties hereto.
11.10 Binding Effect. Assignment and Entire Agreement. This Agreement
shall inure to the benefit of, and shall be binding upon, the respective
successors and permitted assigns of the parties hereto. Borrower shall not have
the right to assign any of its rights or obligations hereunder without the prior
written consent of Lenders. This Agreement, and the documents executed and
delivered pursuant hereto, constitute the entire Agreement between the parties,
and may be amended only by a writing signed on behalf of each party.
11.11 Superseding Effect of Advance Agreement. The terms and conditions
of that certain Advance commitment letter dated February 11, 1999, from
Administrative Agent to Borrower, shall survive the Closing of this Agreement,
provided, however, that this Agreement shall take precedence over and supersede
any conflicting terms or provisions contained in such letter.
11.12 Funding Losses. If Borrower fails to borrow after a Request for
Advance has been given to Administrative Agent, Borrower shall reimburse Lenders
on demand for any resulting loss or expense incurred by Lenders; provided that
Administrative Agent shall have delivered to Borrower a certificate as to the
amount of such loss, which certificate shall be conclusive and binding for all
purposes, absent manifest error.
11.13 Increased Costs. If, due to either (i) the introduction of any
law or regulation or any change in, or in the interpretation of, any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law) in
either case made subsequent to the date hereof, there shall be any increase in
the cost to any Lender of agreeing to make or of making, funding or maintaining
LIBOR based Advances, then Borrower shall from time to time, upon demand by any
Lender (with a copy of such demand to Administrative Agent), pay to such Lender
additional amounts sufficient to compensate such Lender for such increased cost.
A certificate as to the amount of such increased cost and calculating such
amount in reasonable detail, submitted to Borrower by such Lender (with a copy
to Administrative Agent), shall be conclusive and binding for all purposes,
absent manifest error.
If any Lender determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) made subsequent to the date hereof
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend or to issue Letters of Credit hereunder and other
commitments of such type or the issuance or maintenance of the Letters of Credit
(or similar contingent obligations), then,
45
upon demand by such Lender (with a copy of such demand to Administrative Agent),
Borrower shall pay to such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender in the light of
such circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend or to issue Letters of Credit hereunder or to the issuance or
maintenance of any Letters of Credit hereunder. A certificate as to the amount
of such increased cost and calculating such amount in reasonable detail,
submitted to Borrower by such Lender (with a copy to Administrative Agent),
shall be conclusive and binding for all purposes, absent manifest error.
Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender to perform its
obligations hereunder to make LIBOR based Advances or to continue to fund or
maintain LIBOR Advances hereunder, then, on notice thereof, and demand therefor
by such Lender to Borrower, (i) each LIBOR based Advance will automatically,
upon such demand by Lender, convert into an Advance based on the Prime Rate then
currently existing (it being understood that interest on such Advances shall
change with any change in the Prime Rate), and (ii) the obligation of Lenders to
make additional LIBOR based Advances shall be suspended until Lenders notify
Borrower that they have determined that the circumstances causing such
suspension no longer exist.
11.14 Severability. If any provision of this Agreement shall be held
invalid under any applicable laws, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
11.15 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
11.16 Seal. This Agreement is intended to take effect as an instrument
under seal.
11.17 Communications. Except as otherwise provided in this Agreement,
all communications between Lenders and Borrower in relation to this Agreement
shall be made through Administrative Agent; provided, however, that any
requests, certificates, statements, reports or similar items required to be
provided by Borrower to Lenders shall be provided to each and every Lender.
11.18 Joinder by Guarantors. Guarantors join in the execution of this
Agreement to express their assent to the terms hereof and acknowledge that,
except for the execution and delivery of the Guarantees, the Second Amended
Facility would not be offered by Lenders and that sufficient consideration
exists for each Guarantor to give its Guarantee to Lenders.
11.19 Waiver of Jury Trial. LENDERS, AND THE UNDERSIGNED BORROWER AND
GUARANTORS, HEREBY KNOWINGLY, VOLUNTARILY AND
46
INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH,
OR IN RESPECT OF ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDERS TO ENTER INTO THIS AGREEMENT.
11.20 Confidentiality Neither Administrative Agent nor any Lender shall
disclose any information that Borrower furnishes to Administrative Agent or to
any Lender in a writing designated as confidential, (not including any such
information that is or becomes generally available to the public or that is or
becomes available to Administrative Agent or such Lender from a source other
than Borrower or any of its Affiliates) to any other Person without the consent
of Borrower, other than (a) to Administrative Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
11.21 Waivers, Amendments, etc. The provisions of this Agreement, the
Notes, and each Collateral Document may from time to time be amended, modified
or waived, if such amendment, modification or waiver is in writing and consented
to by Borrower and Majority Lenders; provided, however, that no such amendment,
modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Majority Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 11.21, change the definition of
"Majority Lenders", amend the terms of the Intercreditor Agreement, increase any
Commitment or the percentage of any Lender, reduce any fees described herein,
release any collateral security, except as otherwise specifically provided in
any Collateral Document or amend any Guarantee (or release any Guarantor from
its obligations thereunder), or extend any Commitment termination date without
the consent of each Lender;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any Advance or
any fee (or reduce the principal amount of or rate of interest on any Advance or
any fee) shall be made without the consent of all Lenders with respect to such
Advance or fee; or
(d) affect adversely the interests, rights or obligations of
Administrative Agent in its capacity as Administrative Agent hereunder, without
consent of Administrative Agent.
No failure or delay on the part of Administrative Agent, any Lender in
exercising any power or right under this Agreement, the Notes, or any Collateral
Document shall operate as a waiver
47
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on Borrower in any case shall entitle it
to any notice or demand in similar or other circumstances. No waiver or approval
by Administrative Agent, any Lender under this Agreement or any Collateral
Document shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
(Signatures are on the following pages)
48
ADMINISTRATIVE AGENT / LENDER:
DRESDNER BANK LATEINAMERIKA
AKTIENGESELLSCHAFT, Miami Agency,
an international bank agency licensed by the State of
Florida
By: /s/ Frank Huthrance
-----------------------------------
Print Name: Frank Huthrance
Title: Vice President
By: /s/ Caleb Vasquez
-----------------------------------
Print Name: Caleb Vasquez
Title: Vice President
LENDERS:
BANK LEUMI USA,
a New York banking corporation
By: /s/ Paul Tine
-----------------------------------
Print Name: Paul Tine
Title: Vice President
By: /s/ Richard Silverstein
-----------------------------------
Print Name: Richard Silverstein
Title: Senior Vice President
ABN AMRO BANK, N.V., Miami Agency,
an international bank agency licensed by the State of
Florida
By: /s/ Richard Lavina
-----------------------------------
Print Name: Richard Lavina
Title: Vice President
By: /s/ Miguel Costello
-----------------------------------
Print Name: Miguel Costello
Title: Officer
49
WACHOVIA BANK, N.A.,
a national banking association
By: /s/ William R. McCarney
-----------------------------------
Print Name: William R. McCarney
Title: Vice President
FIRST UNION NATIONAL BANK,
a national banking association
By: /s/ Walker Duvall
-----------------------------------
Print Name: Walker Duvall
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association
By: /s/ Kimberly J. Striegl
-----------------------------------
Print Name: Kimberly J. Striegl
Title: Assistant Vice President
ISRAEL DISCOUNT BANK LIMITED, Miami Agency,
an international bank agency licensed by the
State of Florida
By: /s/ Marco A. Kerbel
-----------------------------------
Print Name: Marco A. Kerbel
Title: Senior Vice President and Manager
50
By: /s/ Stephen J. Jeziorowski
-----------------------------------
Print Name: Stephen J. Jeziorowski
Title: Assistant Vice President
BANQUE SUDAMERIS, Miami Agency,
an international bank agency licensed by the State of
Florida
By: /s/ Efrain C. Lopez
-----------------------------------
Print Name: Efrain C. Lopez
Title: Assistant Vice President
BORROWER:
DYCOM INDUSTRIES, INC.,
a Florida corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger,
Chairman and Chief Executive Officer
JOINDER BY GUARANTORS:
ANSCO & ASSOCIATES, INC.,
a Florida corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
IVY H. SMITH COMPANY,
a Florida corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
51
KOHLER CONSTRUCTION COMPANY, INC.,
a Florida corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
S.T.S. INC.,
a Florida corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
FIBER CABLE, INC.,
a Delaware corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
GLOBE COMMUNICATIONS, INC.,
a North Carolina corporation;
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
STAR CONSTRUCTION, INC.,
a Tennessee corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
52
TESINC, INC.,
an Arizona corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
COMMUNICATIONS CONSTRUCTION GROUP, INC.,
a Pennsylvania corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
INSTALLATION TECHNICIANS, INC.,
a Missouri corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
CABLECOM INC.,
a Delaware corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
LOCATING, INC.,
a Washington corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice-President
53
ERVIN CABLE CONSTRUCTION INC.,
a Kentucky corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice President
APEX DIGITAL TV, INC.,
a Kentucky Corporation
By: /s/ Thomas R. Pledger
-----------------------------------
Thomas R. Pledger, Vice President
54
Exhibit A
RENEWAL, AMENDED AND RESTATED MASTER PROMISSORY NOTE
$17,500,000.00 Atlanta, Georgia
April 27, 1999
FOR VALUE RECEIVED, DYCOM INDUSTRIES, INC. ("Borrower") promises to pay to
the order of DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, Miami Agency, an
international bank agency licensed by the State of Florida ("Agent" or
"Lender"), BANK LEUMI USA, a New York Banking Corporation, and, ISRAEL DISCOUNT
BANK LIMITED, Miami Agency, an international bank agency licensed by the State
of Florida (collectively, "Existing Lenders") and FIRST UNION NATIONAL BANK, a
national banking association, ABN AMRO BANK, N.V., Miami Agency, an
international bank agency licensed by the State of Florida, WACHOVIA BANK, N.A.,
a national banking association, THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association and BANQUES SUDAMERIS, Miami Agency, an international bank
agency licensed by the State of Florida (collectively, "New Lenders") and
Lenders' respective successors and assigns (Existing Lenders, New Lenders and
their respective successors and assigns together, "Lenders") at P.O. Box
01-6039, 801 Brickell Avenue, Miami, FL 33131, or at such other place as Lenders
shall designate in writing, the principal sum of SEVENTEEN MILLION FIVE HUNDRED
THOUSAND AND 00/100 DOLLARS ($17,500,000.00), or such other amount as has been
advanced by Lenders pursuant to Section 2.01 of the Second Amended Facility
Agreement (as defined below), together with interest, being payable in lawful
money of the United States of America, in accordance with the terms and
conditions of that certain Second Amended and Restated Credit Facility Agreement
(the "Second Amended Facility Agreement") of even date among Borrower,
Guarantors and Lenders as amended modified or supplemented from time to time,
which terms and conditions are incorporated herein by reference. The outstanding
principal amount hereunder shall be payable as provided in Section 2.01 of the
Second Amended Facility Agreement.
This Renewal, Amended and Restated Master Promissory Note is a renewal of,
and an amendment to, that certain Renewal, Amended and Restated Master
Promissory Note (the "Old Note") dated as of April 29, 1998 delivered by
Borrower to Existing Lenders in the original amount of $15,000,000, and provides
for the inclusion of New Lenders as additional obligees of Borrower and for the
modification of certain terms of the Old Note.
Borrower also promises to pay interest on the unpaid principal amount
hereof outstanding from time to time from the date hereof until paid at the rate
and on the dates provided in Section 2.01 of the Second Amended Facility
Agreement.
This Promissory Note is the Note referred to in Section 2.01 the Second
Amended Facility Agreement and is entitled to the benefits thereof. Capitalized
terms used in this Promissory Note but not defined herein shall have the
meanings given to them in the Second Amended Facility Agreement.
As provided in the Second Amended Facility Agreement, this Promissory Note
is subject to prepayment, in whole or in part. Both principal and interest are
payable in lawful money of the United States of America to Lenders in
immediately available funds.
Any Advance made by Lenders to Borrower and any payment made on account of
principal and interest hereunder shall be recorded in the appropriate records
("Records") of Lenders on the date such Advance is made or such payment is
received and shall show the date and amount of such Advance or payment and the
applicable interest rate. The failure of Lenders to make any notation or entry
in such Records shall not, however, limit or otherwise affect any of the
obligations of Borrower under this Promissory Note.
If an Event of Default shall occur and be continuing, the principal of and
accrued interest on this Promissory Note may be declared to be due and payable
in the manner and with the effect provided in the Second Amended Facility
Agreement.
Borrower hereby waives diligence, presentment, demand, protest and notice
of every kind whatsoever. The failure of the holder hereof to exercise any of
its rights hereunder in any particular instance shall not constitute a waiver of
the same or any other right in that or any subsequent instance. This Promissory
Note shall be construed in accordance with and governed by the laws of the State
of Florida, without giving effect to any choice of law principles.
BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS RENEWAL, AMENDED AND RESTATED
PROMISSORY NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THIS NOTE.
DYCOM INDUSTRIES, INC.
By:
----------------------------------------------
Thomas R. Pledger,
Executive Chairman of the Board of Directors
2
Exhibit B
RENEWAL, AMENDED AND RESTATED MASTER PROMISSORY NOTE
$50,000,000.00 Atlanta, Georgia
April 27, 1999
FOR VALUE RECEIVED, DYCOM INDUSTRIES, INC. ("Borrower") promises to pay to
the order of DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, Miami Agency, an
international bank agency licensed by the State of Florida ("Agent" or "Existing
Lender"), BANK LEUMI USA, a New York banking corporation, and ISRAEL DISCOUNT
BANK LIMITED, Miami, Agency an international bank agency licensed by the State
of Florida (collectively, the "Existing Lenders"), and FIRST UNION NATIONAL
BANK, a national banking association, ABN AMRO BANK, N.V., Miami Agency, an
international bank agency licensed by the State of Florida, WACHOVIA BANK, N.A.,
a national banking association, THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association, and BANQUE SUDAMERIS, Miami Agency, an international bank
agency licensed by the State of Florida (collectively, "New Lenders") and
Lenders' respective successors and assigns (Existing Lenders, New Lenders and
their respective successors and assigns, together, "Lenders"), at P.O. Box
01-6039, 801 Brickell Avenue, Miami, FL 33131, or at such other place as Lenders
shall designate in writing, the principal sum of FIFTY MILLION AND 00/100
DOLLARS ($50,000,000.00), or such other amount as has been advanced by Lenders
pursuant to Section 2.02 of the Second Amended Facility Agreement (as defined
below), together with interest, being payable in lawful money of the United
States of America, in accordance with the terms and conditions of that certain
Second Amended and Restated Credit Facility Agreement (the "Second Amended
Facility Agreement") of even date among Borrower and Lenders as amended modified
or supplemented from time to time, which terms and conditions are incorporated
herein by reference. The outstanding principal amount hereunder shall be payable
as provided in Section 2.02 of the Second Amended Facility Agreement.
This Renewal, Amended and Restated Master Promissory Note is a renewal of,
and amendment to, that certain Renewal, Amended and Restated Master Promissory
Note (the "Old Note") dated as of April 29, 1998 delivered by Borrower to the
Existing Lenders in the original amount of $30,000,000, and provides for the
inclusion of New Lenders as additional obligees of Borrower and for the
modification of certain terms of the Old Note.
Borrower also promises to pay interest on the unpaid principal amount
hereof outstanding from time to time from the date hereof until paid at the rate
and on the dates provided by the Second Amended Facility Agreement.
This Promissory Note is the Note referred to in Section 2.02 the Second
Amended Facility Agreement and is entitled to the benefits thereof. Capitalized
terms used in this Promissory Note but not defined herein shall have the
meanings given to them in the Second Amended Facility Agreement.
As provided in the Second Amended Facility Agreement, this Promissory Note
is subject to prepayment, in whole or in part. Both principal and interest are
payable in lawful money of the United States of America to Lenders in
immediately available funds.
Any Advance made by Lenders to Borrower and any payment made on account of
principal and interest hereunder shall be recorded in the appropriate records
("Records") of Lenders on the date such Advance is made or such payment is
received and shall show the date and amount of such Advance or payment and the
applicable interest rate. The failure of Lenders to make any notation or entry
in such Records shall not, however, limit or otherwise affect any of the
obligations of Borrower under this Promissory Note.
If an Event of Default shall occur and be continuing, the principal of and
accrued interest on this Promissory Note may be declared to be due and payable
in the manner and with the effect provided in the Second Amended Facility
Agreement.
Borrower hereby waives diligence, presentment, demand, protest and notice
of every kind whatsoever. The failure of the holder hereof to exercise any of
its rights hereunder in any particular instance shall not constitute a waiver of
the same or any other right in that or any subsequent instance. This Promissory
Note shall be construed in accordance with and governed by the laws of the State
of Florida, without giving effect to any choice of law principles.
BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS RENEWAL, AMENDED AND RESTATED MASTER
PROMISSORY NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THIS NOTE.
DYCOM INDUSTRIES, INC.
By:
-----------------------------------------------
Thomas R. Pledger,
Executive Chairman of the Board of Directors
2
Exhibit C
RENEWAL, AMENDED AND RESTATED PROMISSORY NOTE
$12,750,000.00 Atlanta, Georgia
April 27, 1999
FOR VALUE RECEIVED, DYCOM INDUSTRIES, INC. ("Borrower") promises to pay to the
order of DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, Miami Agency, an
international bank agency licensed by the State of Florida, BANK LEUMI USA, a
New York Banking Corporation and, ISRAEL DISCOUNT BANK LIMITED, Miami Agency, an
international bank agency licensed by the State of Florida (collectively,
"Existing Lenders"), and FIRST UNION NATIONAL BANK, a national banking
association, ABN AMRO BANK, N.V., Miami Agency, an international bank agency
licensed by the State of Florida, WACHOVIA BANK, N.A., a national banking
corporation, THE FIRST NATIONAL BANK OF CHICAGO, a national banking association
and BANQUE SUDAMERIS, Miami Agency, an international bank agency licensed by the
State of Florida (collectively, "New Lenders") and Lenders' respective
successors and assigns, (Existing Lenders, New Lenders and their respective
successors and assigns together, "Lenders"), at P.O. Box 01-6039, 801 Brickell
Avenue, Miami, FL 33131, or at such other place as Lenders shall designate in
writing, the principal sum of TWELVE MILLION SEVEN HUNDRED FIFTY THOUSAND AND
00/100 DOLLARS ($12,750,000.00), or such other amount as has been advanced by
Lenders pursuant to Section 2.03 of the Second Amended Facility Agreement (as
defined below), together with interest, being payable in lawful money of the
United States of America, in accordance with the terms and conditions of that
certain Second Amended and Restated Credit Facility Agreement (the "Second
Amended Facility Agreement") of even date among Borrower, Guarantors and Lenders
as amended, modified or supplemented from time to time, which terms and
conditions are incorporated herein by reference. The outstanding principal
amount hereunder shall be payable as provided in Section 2.03 of the Second
Amended Facility Agreement.
This Renewal, Amended and Restated Promissory Note is a renewal of, and an
amendment to, that certain Promissory Note (the "Old Note") dated as of April
29, 1998 delivered by Borrower to Existing Lenders in the original amount of
$15,000,000, and provides for the inclusion of New Lenders as additional
obligees of Borrower and for the modification of certain terms of the Old Note.
Borrower also promises to pay interest on the unpaid principal amount
hereof outstanding from time to time from the date hereof until paid at the rate
and on the dates provided in Section 2.03 of the Second Amended Facility
Agreement.
This Promissory Note is the Note referred to in Section 2.03 the Second
Amended Facility Agreement and is entitled to the benefits thereof. Capitalized
terms used in this Promissory Note but not defined herein shall have the
meanings given to them in the Second Amended Facility Agreement.
As provided in the Second Amended Facility Agreement, this Promissory Note
is subject to prepayment, in whole or in part. Both principal and interest are
payable in lawful money of the United States of America to Lenders in
immediately available funds.
Any Advance made by Lenders to Borrower and any payment made on account of
principal and interest hereunder shall be recorded in the appropriate records
("Records") of Lenders on the date such Advance is made or such payment is
received and shall show the date and amount of such Advance or payment and the
applicable interest rate. The failure of Lenders to make any notation or entry
in such Records shall not, however, limit or otherwise affect any of the
obligations of Borrower under this Promissory Note.
If an Event of Default shall occur and be continuing, the principal of and
accrued interest on this Promissory Note may be declared to be due and payable
in the manner and with the effect provided in the Second Amended Facility
Agreement.
Borrower hereby waives diligence, presentment, demand, protest and notice
of every kind whatsoever. The failure of the holder hereof to exercise any of
its rights hereunder in any particular instance shall not constitute a waiver of
the same or any other right in that or any subsequent instance. This Promissory
Note shall be construed in accordance with and governed by the laws of the State
of Florida, without giving effect to any choice of law principles.
BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS RENEWAL, AMENDED AND RESTATED
PROMISSORY NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THIS NOTE.
DYCOM INDUSTRIES, INC.
By:
-----------------------------------------------
Thomas R. Pledger,
Executive Chairman of the Board of Directors
2
Exhibit D
RENEWAL, AMENDED AND RESTATED MASTER PROMISSORY NOTE
$95,000,000.00 Atlanta, Georgia
April 27, 1999
FOR VALUE RECEIVED, DYCOM INDUSTRIES, INC. ("Borrower") promises to pay to
the order of DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, Miami Agency, an
international bank agency licensed by the State of Florida ("Agent" or
"Lender"), BANK LEUMI USA, a New York banking corporation, and ISRAEL DISCOUNT
BANK LIMITED, an international bank agency licensed by the State of Florida,
(collectively, the "Existing Lenders"), and FIRST UNION NATIONAL BANK, a
national banking association, ABN AMRO BANK, N.V., Miami Agency, an
international bank agency licensed by the State of Florida, WACHOVIA BANK, N.A.,
a national banking association, THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association, a national banking association, and BANQUE SUDAMERIS, Miami
Agency, an international bank agency licensed by the State of Florida
(collectively, the "New Lenders") and Lenders' respective successors and assigns
(the Existing Lenders, the New Lenders and their respective successors and
assigns together, the "Lenders"), at P.O. Box 01-6039, 801 Brickell Avenue,
Miami, FL 33131, or at such other place as Lenders shall designate in writing,
the principal sum of NINETY-FIVE MILLION AND 00/100 DOLLARS ($95,000,000.00), or
such other amount as has been advanced by Lenders pursuant to Section 2.04 of
the Second Amended Facility Agreement (as defined below), together with
interest, being payable in lawful money of the United States of America, in
accordance with the terms and conditions of that certain Second Amended and
Restated Credit Facility Agreement (the "Second Amended Facility Agreement") of
even date among Borrower, Guarantors and Lenders, as amended, modified or
supplemented from time to time, which terms and conditions are incorporated
herein by reference. The outstanding principal amount hereunder shall be payable
as provided in Section 2.04 of the Second Amended Facility Agreement.
This Renewal, Amended and Restated Master Promissory Note is a renewal of,
and an amendment to, that certain Master Promissory Note (the "Old Note") dated
as of April 29, 1998 delivered by Borrower to the Existing Lenders in the
original amount of $25,000,000, and provides for the inclusion of the New
Lenders as additional obligees of Borrower and for the modification of certain
terms of the Old Note.
Borrower also promises to pay interest on the unpaid principal amount
hereof outstanding from time to time from the date hereof until paid at the rate
and on the dates provided in Section 2.04 of the Second Amended Facility
Agreement.
This Promissory Note is the Note referred to in Section 2.04 the Second
Amended Facility Agreement and is entitled to the benefits thereof. Capitalized
terms used in this Promissory Note but not defined herein shall have the
meanings given to them in the Second Amended Facility Agreement.
As provided in the Second Amended Facility Agreement, this Promissory Note
is subject to
prepayment, in whole or in part. Both principal and interest are payable in
lawful money of the United States of America to Lenders in immediately available
funds.
Any Advance made by Lenders to Borrower and any payment made on account of
principal and interest hereunder shall be recorded in the appropriate records
("Records") of Lenders on the date such Advance is made or such payment is
received and shall show the date and amount of such Advance or payment and the
applicable interest rate. The failure of Lenders to make any notation or entry
in such Records shall not, however, limit or otherwise affect any of the
obligations of Borrower under this Promissory Note.
If an Event of Default shall occur and be continuing, the principal of and
accrued interest on this Promissory Note may be declared to be due and payable
in the manner and with the effect provided in the Second Amended Facility
Agreement.
Borrower hereby waives diligence, presentment, demand, protest and notice
of every kind whatsoever. The failure of the holder hereof to exercise any of
its rights hereunder in any particular instance shall not constitute a waiver of
the same or any other right in that or any subsequent instance. This Promissory
Note shall be construed in accordance with and governed by the laws of the State
of Florida, without giving effect to any choice of law principles.
BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS RENEWAL, AMENDED AND RESTATED MASTER
PROMISSORY NOTE AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THIS NOTE.
DYCOM INDUSTRIES, INC.
By:
-----------------------------------------------
Thomas R. Pledger,
Executive Chairman of the Board of Directors
2
Exhibit E
---------
REQUEST FOR ADVANCE
-------------------
LENDER: PRO-RATA SHARE ADVANCE AMOUNT
DRESDNER BANK LATEINAMERIKA
AKTIENGESELLSCHAFT, MIAMI AGENCY 20.3994294% _______________
FIRST UNION NATIONAL BANK 20.2567760% _______________
ABN AMRO BANK N.V 12.5534950% _______________
WACHOVIA BANK N.A. 12.5534950% _______________
BANK LEUMI USA 8.5592011% _______________
BANQUE SUDAMERIS 8.5592011% _______________
THE FIRST NATIONAL BANK OF CHICAGO 8.5592011% _______________
ISRAEL DISCOUNT BANK, MIAMI AGENCY 8.5592011% _______________
(the "Lenders")
TOTAL ADVANCE REQUESTED: _______________
RE: DYCOM INDUSTRIES, INC.
Request for Advance under Second Amended and Restated Credit Facility
Agreement
Advance Number ______
Dear Sir/Madam:
We hereby request that you advance the amount of [Amount] (the "Advance") which
Advance shall be for a period of [period] days and have a Maturity Date of
[Maturity], under and subject to the terms, conditions and provisions of
Paragraph [2.02] [2.04] of: (i) that certain Second Amended and Restated Credit
Facility Agreement (the "Agreement") dated April __, 1999, by and between Dycom
Industries, Inc., a Florida Corporation, as Borrower, the Guarantors identified
below and the Lenders; (ii) that certain Renewal, Amended and Restated Master
Promissory Note made by Borrower, in favor of Lenders, dated April __, 1999; and
(iii) those certain Guarantees dated April __, 1999 made jointly and severally
by ANSCO & ASSOCIATES, INC. , a Florida Corporation; IVY H. SMITH COMPANY, a
Florida Corporation; KOHLER CONSTRUCTION COMPANY, INC., a Florida Corporation;
S.T.S. INC., a Florida Corporation; FIBER CABLE, INC., a Delaware Corporation;
GLOBE COMMUNICATIONS, INC., a North Carolina Corporation; STAR CONSTRUCTION,
INC., a Tennessee Corporation; TESINC, INC., an Arizona Corporation;
COMMUNICATIONS CONSTRUCTION GROUP, INC., A Pennsylvania Corporation; LOCATING,
INC., a Washington corporation; IRVINE CABLE CONSTRUCTION INC., a Kentucky
corporation; APEX DIGITAL TV, INC., a Kentucky corporation; INSTALLATION
TECHNICIANS, INC., a Missouri Corporation; and CABLECOM INC., a Delaware
Corporation, as Guarantors and each as Guarantor, in favor of Lenders,
guaranteeing the payment and performance of all obligations of Borrower pursuant
to items (i) and (ii) above. The funds shall be used for the purpose of
[Purpose], and shall be used exclusively by [Borrower] [Guarantor]. [Attached
hereto are supplier's invoices and/or bills of lading and/or other supporting
documentation for the equipment being financed by this Advance.]
We hereby elect that the interest rate to be charged for this Advance shall be
the [LIBOR Rate] [Prime Rate] as provided for under Paragraph [2.02(C)(1)]
[2.02(C)(2)] [2.04(C)(1)] [2.04(C)(2)] of the Agreement We likewise confirm and
acknowledge the continued validity and enforceability of the above-stated
documents and all other loan documents executed and delivered in connection
therewith and the applicability of the same to this Advance.
This constitutes a Request for Advance under the Agreement.
Sincerely,
Dycom Industries, Inc.
By: _________________________
Exhibit F
---------
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
THIS SECOND AMENDED AND RESTATED SECURITY AGREEMENT (the "Security
Agreement"), made this ___ day of April, 1999, by ________________________, a
_________ corporation (hereinafter called the "Debtor"), having its principal
address at _________________________, who, for valuable consideration, the
receipt and sufficiency of which is, hereby, acknowledged, hereby grants to
DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, Miami Agency, an international
bank agency licensed by the State of Florida, BANK LEUMI USA, a New York banking
corporation, ISRAEL DISCOUNT BANK LIMITED, Miami Agency, an international bank
agency licensed by the State of Florida, (collectively, "Existing Secured
Parties"), and ABN AMRO BANK N.V., Miami Agency, an international bank agency
licensed by the State of Florida, BANQUE SUDAMERIS, Miami Agency, an
international bank agency licensed by the State of Florida, THE FIRST NATIONAL
BANK OF CHICAGO, a national banking association, FIRST UNION NATIONAL BANK, a
national banking association; WACHOVIA BANK N.A., a National Banking Association
(collectively "New Secured Parties") (Existing Secured Parties and New Secured
Parties together, "Secured Party"), and renews and/or amends, a lien upon and
security interest in the property and any replacements thereof described in
Exhibit "A" attached hereto and by this reference made a part hereof as well as
all proceeds therefrom and insurance thereon (said property being hereinafter
called the "Collateral"). All terms not defined herein shall have the meanings
assigned to them under the Second Amended and Restated Facility Agreement of
even date herewith, as amended or modified from time to time (the "Second
Amended Facility Agreement") among the Borrower, the Debtor, the other
Guarantors named therein and the Secured Party.
This Security Agreement is entered into to secure payment of and
performance of any and all of Obligations to Secured Party now or hereafter
existing under the Second Amended Facility Agreement, the Notes, and the other
Collateral Documents thereto of even date herewith as well as any obligations
arising under or in connection with Hedging Instruments entered into from time
to time ("Rate Hedging Obligations" and, together with the "Obligations" the
"Secured Obligations"), and has been amended and restated to provide for, among
other things, the inclusion of New Secured Parties as additional obligees and
for the continuation, amendment and renewal of the Security Agreement between
Existing Secured Parties and Debtor dated as of April 28, 1997 as amended and
restated by that certain Amended and Restated Security Agreement dated April 29,
1998. Any documents including, but not limited to, any notes, mortgages,
security agreements, including Security Agreement, securing or evidencing the
Secured Obligations and are hereinafter collectively called the "Collateral
Documents."
Incident thereto, Debtor agrees with Secured Party as follows:
1. Debtor warrants and represents that:
(a) Debtor is the lawful owner of such Collateral and has good
right to pledge, sell, assign, co-sign, transfer and create a security interest
in the same;
(b) Debtor will, at Secured Party's request, defend the
Collateral from all claims and demands of all persons;
(c) All tangible Collateral is to be kept at the business to
be maintained at Debtor's principal place of business, and will not be removed
therefrom, except in the ordinary course of business, without the prior written
consent of Secured Party; provided, however, that it may move tangible
Collateral to a location of an affiliate with respect to which Secured Party
also has a perfected security interest in like Collateral; and
(d) Debtor will, at its own cost and expense, keep the
Collateral in as good and substantial repair as the same is in at this date, or
as the same exists when acquired, reasonable wear and tear excepted, making
replacements when and where necessary and, in this connection, Secured Party
hereby agrees that it will give its written consent to the removal by Debtor of
the same, or any part thereof, from the
above described property if and to the extent that such removal is necessary or
advisable so to do in connection with Debtor's fulfilling of its obligations
under this subparagraph `1', as long as such Collateral is replaced by
Collateral which is unencumbered and of equal value and if, in the opinion of
Secured Party, the priority of its security interest therein will not be
jeopardized.
(e) The Collateral is not subject to any other liens except
the first priority liens in favor of Secured Party set forth herein.
2. Upon request and as instructed by Administrative Agent, Debtor
agrees to comply with the requirements of all applicable state and federal laws
in order to grant to Secured Party a valid lien upon, and a security interest
in, the Collateral described herein, or which may be described in any amendment
supplementary hereto.
3. Debtor will pay, when due, all taxes, assessments, and other charges
lawfully and validly levied or assessed upon the Collateral or any part thereof,
and Debtor will pay any and all fees, costs and expenses, of whatever kind and
nature, which Administrative Agent may incur in filing public notices, and the
reasonable charges of any attorneys whom Administrative Agent may engage in
preparing and filing such documents, making title examinations and rendering
opinion letters, as well as expenses incurred by Administrative Agent, including
reasonable attorney's fees, in protecting, maintaining, preserving, enforcing or
foreclosing the security interest granted to Administrative Agent hereunder,
whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions or proceedings arising out of or relating to this
transaction, promptly after Debtor shall have been notified by Secured Party of
the amount of such fees, costs or expenses.
4. Debtor agrees that Secured Party, or its agents, may enter upon
Debtor's property at any time, and from time to time, for the purpose of
inspecting the Collateral, and any and all records pertaining thereto. Debtor
agrees to promptly notify Administrative Agent of any change in its mailing
address or principal place of business, in order that a prompt refiling of any
outstanding notices may be made, if necessary. Debtor shall also advise
Administrative Agent, within thirty (30) days, of any new facts known to Debtor
which, under the applicable provisions of law, would affect the priority of the
security interest granted to Secured Party by this instrument.
5. Debtor will have and maintain insurance at all times with respect to
all Collateral in types, forms, amounts and in the manner as specified in the
Second Amended Facility Agreement, this Security Agreement and any other
Collateral Document, such insurance to be payable to Administrative Agent on
behalf of Secured Party and Debtor, as their interests may appear. All policies
of insurance shall provide for thirty (30) days written minimum cancellation
notice to Administrative Agent and Debtor shall furnish Administrative Agent
with certificates or other evidence satisfactory to Secured Party of compliance
with the foregoing insurance provisions as set forth herein and in the
Collateral Documents.
6. At its option, Administrative Agent may discharge taxes, liens or
security interests or other encumbrances at any time levied or placed on the
Collateral, may pay for insurance on the Collateral and may pay for the
maintenance and preservation of the Collateral. All such sums, as well as costs,
advanced by Secured Party pursuant to this Security Agreement shall be due
immediately from Debtor to Secured Party, shall be secured hereby and shall bear
interest at the highest default rate of interest specified in any note or other
agreement evidencing the Secured Obligations and if no such instrument exists,
then at the highest rate allowed by law, from the date of payment by Secured
Party until the date of repayment by Debtor. Until Default, Debtor may have
possession of the Collateral and use it in any lawful manner not inconsistent
with this Security Agreement and not inconsistent with any policy of insurance
thereon.
7. (a) Upon the occurrence of any Event of Default and acceleration of
the Obligations under the Second Amended Facility Agreement or acceleration of
any Rate Hedging Obligation under any Hedging Instruments, Secured Party shall
have the remedies of a secured party under the Uniform Commercial Code as
adopted in Florida. Secured Party may require Debtor to assemble and deliver the
Collateral and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to
2
both parties. Administrative Agent on behalf of Secured Party may peaceably, by
its own means or with judicial assistance, enter Debtor's Property and Debtor
will not resist or interfere with such action. Unless the Collateral is
perishable or threatens to decline speedily in value or is a type customarily
sold on a recognized market, Administrative Agent will give Debtor reasonable
notice of the time and place of any public sale thereof, or of the time after
which any private sale or any other intended disposition thereof is to be made.
The requirements of reasonable notice shall be met if such notice is mailed,
postage prepaid, to the address of Debtor shown at the beginning of this
Security Agreement at least twenty (20) days before the time of the sale or
disposition. Expenses of retaking, holding, preparing for sale, selling or the
like shall include Secured Party's reasonable attorney's fees and legal
expenses.
(b) In case of the exercise of any of the rights of Secured
Party hereunder, all Collateral, and other property or security given to secure
the indebtedness secured hereby, may be offered for sale for one total price,
and the proceeds of such sale accounted for in one account without distinction
between items of security or without assigning to them any proportion of the
proceeds of such sale, Debtor insofar as it legally may so do hereby waiving the
application of any doctrine of marshalling, or the Collateral, or such other
property or security, may be offered for sale separately, and sales may be held
from time to time, and all powers of Secured Party shall not be fully executed
until all Collateral, and such other property or security, shall have been sold.
(c) any proceeds derived from the sale or disposition of any
Collateral shall be distributed as follows:
(i) first, to the payment of any expenses of Secured
Party in the enforcement of its rights hereunder;
(ii) second, for the payment of fees due under the
Second Amended Facility Agreement;
(iii) third, to the payment of any accrued interest
and/or penalties payable to Lenders;
(iv) fourth, to the payment of the principal amount
of any outstanding Advances and outstanding Rate Hedging Obligations pari passu;
(v) fifth, any other Secured Obligation including,
without limitation, obligations under Letters of Credit that are not yet
outstanding; and
(vi) sixth, to Debtor, or as a court of competent
jurisdiction may decide.
8. No waiver by Secured Party of any default shall operate as a waiver
of any other default or of the same default on a future occasion. All rights of
Secured Party hereunder shall inure to the benefit of its successors and
assigns; and all obligations of Debtor shall bind its successors and assigns. If
there be more than one Debtor, their obligations hereunder shall be joint and
several.
9. The covenants and agreements herein contained shall extend to, inure
to the benefit of, and be binding upon, the respective successors and assigns of
the parties hereto, the same as if they were in every case named and expressed.
10. Debtor covenants and agrees to execute such financing statements,
security agreements or other instruments with respect to the Collateral as
Administrative Agent or any Lender may request, and hereby authorizes
Administrative Agent or any Lender to execute and file, at any time, such
financing statements without Debtor's signature. Debtor agrees that
Administrative Agent or any Lender may file this Security Agreement in lieu of
any such financing statement.
3
11. This Security Agreement shall be construed in accordance with and
governed by the laws of the State of Florida, without giving effect to any
choice of law principles.
THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY AGREEMENT
AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SECURED PARTY
ENTERING INTO THIS SECURITY AGREEMENT.
IN WITNESS WHEREOF, Debtor has caused this instrument to be duly
executed on its behalf as of the day and year first above written.
Signed, sealed and delivered
in the presence of:
____________________________________ [BORROWER/GUARANTOR]
a ______________ corporation
By_________________________________
Thomas R. Pledger,
[Executive Chairman of the Board of
Directors/Vice-President]
STATE OF )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of
April 1999, by Thomas R. Pledger, as ___________________________________ of
[BORROWER/GUARANTOR], a Florida corporation, who produced the following as
identification _____________ and who did (did not) take an oath.
--------------------------------------
NOTARY PUBLIC, STATE OF GEORGIA
My Commission Expires:
4
EXHIBIT "A"
Description of the Collateral
All of the Debtor's right, title and interest in the following items of
personal property, wherever located, whether now owned or hereafter acquired or
arising, together with all replacements and additions therefor and all cash and
non-cash proceeds (including insurance proceeds) and products thereof:
(A) All machinery, equipment, vehicles, vessels, aircraft,
fixtures, buildings, appliances, furniture and other tangible assets.
(B) All inventory.
(C) All accounts, contract rights and accounts receivable, and
all returned or repossessed goods arising from or relating to any of the said
accounts or rights.
(D) All instruments, documents, chattel paper and general
intangibles, rights in trademarks, trade names, patents, copyrights and
licenses.
(E) All cash or non-cash proceeds of any of the foregoing,
including insurance proceeds.
(F) All ledger sheets, files, records, documents, and
instruments (including but not limited to, computer programs, tapes and related
electronic data processing software) evidencing an interest or relating to the
above.
(G) All substitutes and replacements for, accessions,
attachments, and other additions to, and tools, parts, and equipment used in
connection with any of the above, and all products or proceeds of the above.
Together with all instruments, documents, chattel papers and general
intangibles relating to or arising from the foregoing Collateral and all cash
and non-cash proceeds and products thereof.
THIS EXHIBIT "A" TO SECURITY AGREEMENT executed by Debtor this ____ day
of April, 1999.
[BORROWER/GUARANTOR]
a ______________ corporation
By_________________________________
Thomas R. Pledger,
Title: _______________________
5
Exhibit G
---------
SECOND AMENDED AND RESTATED GUARANTEE AGREEMENT
This continuing, absolute and unconditional amended and restated guarantee
is given by the undersigned ("Guarantor") to induce DRESDNER BANK LATEINAMERIKA
AKTIENGESELLSCHAFT, Miami Agency, an international bank agency licensed by the
State of Florida, BANK LEUMI USA, a New York banking corporation, ISRAEL
DISCOUNT BANK LIMITED, Miami Agency, an international bank agency licensed by
the State of Florida (collectively, "Existing Lenders"), and ABN AMRO BANK N.V.,
Miami Agency, an international bank agency licensed by the State of Florida,
BANQUE SUDAMERIS, Miami Agency, an international bank agency licensed by the
State of Florida; THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association, FIRST UNION NATIONAL BANK, a national banking association; WACHOVIA
BANK N.A., a national banking association (collectively, "New Lenders")
(Existing Lenders and New Lenders together, "Lenders"), having a business
address of P.O. Box 01-6039, 801 Brickell Avenue, Miami, FL 33131 to extend
credit to or otherwise become or remain the creditor of DYCOM INDUSTRIES, INC.,
a Florida corporation ("Borrower");
In consideration of the foregoing, Guarantor does hereby agree with
Lenders as follows:
1. GENERAL.
This Second Amended and Restated Guarantee Agreement provides for
the inclusion of New Lenders as additional obligees of Borrower,
and represents the continuing, absolute and unconditional Guarantee
by the undersigned of all of Borrower's existing and new
obligations to Existing Lenders and to New Lenders.
2. OBLIGATION OF GUARANTOR.
Guarantor absolutely and unconditionally guarantees to Lenders,
their successors and assigns (whether collateral assigns or
otherwise), the prompt and full payment in United States currency
and performance to Lenders at the place of business of Lenders set
forth above or at such other place and to such other person as
Lenders may designate at maturity of any and every obligation, in
connection with which either as maker, drawer, guarantor, endorser
or otherwise, whether directly, indirectly or contingently,
Borrower is, either individually or jointly and severally with any
other person or persons, or shall become at any time in the future
liable to Lenders, with interest thereon at the rate or rates
provided in the obligations guaranteed hereby or at the maximum
rate allowed from time to time by law in Florida, whichever is
less, until payment in full has been received by Lenders, together
with all attorneys' fees, costs and expenses of collection whether
suit be brought or not, including costs, expenses and attorneys'
fees on appeal if an appeal is taken from any suit, incurred by
Lenders, in connection with any matter covered by this Guarantee.
Guarantor also absolutely and unconditionally guarantees the full
and timely performance of all duties and obligations whatsoever of
Borrower to Lenders, whether now existing or hereafter arising, and
agrees in the event Borrower fails to fully and timely perform any
of said duties and obligations to fully and timely perform same.
3. TERM OF GUARANTEE.
The liability of Guarantor hereunder shall continue until the
earlier of (i) the 120th day after this Guarantee is marked
"Cancelled" by Lenders and returned to Guarantor or (ii) until
Lenders shall receive written notice, by registered mail signed by
Guarantor, cancelling this Guarantee, but such cancellation shall
not affect in any way the continuing liability of Guarantor on any
transactions covered by this Guarantee up to the time of the actual
receipt by Lenders of such notice of cancellation, including any
advance or other monies which may at any time thereafter be made by
Lenders to Borrower pursuant to any agreement, promissory note or
other instrument or document evidencing any indebtedness of
Borrower to Lenders, entered into prior to the receipt by Lenders
of said notice by Guarantor. Notwithstanding the receipt by Lenders
of any notice of cancellation hereunder, Lenders may in their
discretion amend, modify and renew in any way whatsoever any
agreement, promissory note or other instrument or document
evidencing any indebtedness of Borrower to Lenders and in existence
at the time said notice of cancellation is received by Lenders, all
without affecting in any way whatsoever the continuing liability of
Guarantor hereunder, but the liability of Guarantor solely in
regard to the principal amount owed Lenders shall not exceed the
amount of principal owing to Lenders at the time said notice of
cancellation is received by Lenders together with such additional
amounts as may thereafter be advanced by Lenders to or on behalf of
Borrower pursuant to any such agreement, promissory note or other
instrument or document in existence at the time said notice is
received by Lenders. In the event said notice of cancellation is
given, the liability of Guarantor shall continue without limitation
whatsoever for all amounts other than principal (which is limited
under the preceding sentence) due Lenders such as interest,
attorney's fees, costs, and other such amounts.
4. BANKRUPTCY OF BORROWER.
Notwithstanding that the Guarantee may have been cancelled under
paragraph 3, and/or returned to Guarantor, to the extent Borrower
has made any payments to Lenders within the one (1) year period
following the date this Guarantee was so cancelled, and Guarantor
was obligated under this Guarantee for said payments, the liability
of Guarantor hereunder shall at all times continue for the amounts
so paid by Borrower to Lenders. If, for any reason (e.g.
bankruptcy, or otherwise), Lenders are not permitted to retain the
payments so made by Borrower during said one (1) year period,
Guarantor shall be liable under this Guarantee for the amount of
such payments as if this Guarantee had never been cancelled and
Lenders shall be entitled to recover said amount so paid by
Borrower within said one (1) year period. Anything in this
Guarantee to the contrary notwithstanding, if at any time this
Guarantee is to be cancelled under the provisions of paragraph 3,
Lenders may retain this Guarantee for a period of one hundred
twenty (120) days after the date said Guarantee is to be so
cancelled and in the event no bankruptcy petition has been filed by
or against Borrower for the one (1) year period following the date
the Guarantee is to be cancelled, then, in that event, the
Guarantee shall be returned to Guarantor. If, however, a bankruptcy
petition has been filed by or against Borrower during the one (1)
year period, and Borrower has made payments to Lenders during the
one (1) year period, this Guarantee shall not be cancelled and/or
returned to Guarantor unless and until a decision by a court of
competent jurisdiction, or other agreement has been entered or
reached, pursuant to which Lenders shall be entitled to retain all
such monies paid during the one (1) year period. If, as set forth
above, Lenders are obligated to return to Borrower any monies so
paid during the one (1) year period, this Guarantee shall not be
cancelled (notwithstanding it being marked "Cancelled" and returned
to Guarantor) and Guarantor shall continue to be liable to Lenders
for all monies paid during the one (1) year period. If Lenders
shall have marked this Guarantee "Cancelled" and/or returned this
Guarantee to Guarantor, and under the provisions of
2
this paragraph 4 or paragraph 3, Guarantor has continuing liability
to Lenders for certain amounts which Lenders have or are
obligated to return to Borrower, then, in such case, Lenders may
enforce their rights under this Guarantee upon any copy of this
Guarantee notwithstanding the fact that the original of this
Guarantee may have been marked "Cancelled" and/or returned to
Guarantor.
5. CONSENT TO LENDERS' ACTS.
Guarantor consents, without affecting in any way Guarantor's
liability to Lenders hereunder, that Lenders may, without notice to
or consent of Guarantor and upon such terms as they may deem
advisable and with or without consideration and after notice of
cancellation is received by Lenders under paragraph 3 hereof: (a)
extend, in whole or in part, by renewal or otherwise, and as often
as Lenders may wish, the time of payment of any indebtedness owing
by Borrower, to Lenders, or held by Lenders as security for any
such obligation; (b) release, surrender, exchange, modify, impair,
or extend the period of duration, or the time for performance of
payment, of any collateral securing any obligation of Borrower to
Lenders; (c) settle or compromise any claim of Lenders against
Borrower, or against any other person, firm or corporation, whose
obligation is held by Lenders as collateral security for any
obligation of Borrower to Lenders; and (d) release in whole or in
part any person liable for the payment of any obligation of
Borrower to Lenders including, but not limited to, any person
liable as an endorser, guarantor or judgment debtor (if Lenders
obtain a judgment on any obligation of Borrower) of said obligation
and, in any event, any such release shall not affect the liability
of Guarantor for the entire amount of any and every obligation of
Borrower to Lenders. Further, Lenders shall not be under any
obligation whatsoever to obtain or perfect or to maintain the
perfection of any security interest or other lien on property to
secure indebtedness of Borrower to Lenders and Lenders shall have
no obligation to, and shall not have any liability for failing to,
obtain or perfect or to maintain the perfection of any security
interest or lien on property to secure indebtedness of Borrower.
Any failure of Lenders to obtain and perfect or to maintain the
perfection of any security interest or lien shall not affect in any
way whatsoever the obligation of Guarantor to Lenders under this
Guarantee. Guarantor hereby ratifies and confirms any such
extension, renewal, release surrender, exchange, modification,
impairment, settlement, or compromise, and all such actions shall
be binding upon Guarantor who hereby waives all defenses,
counterclaims, or offsets which Guarantor might have by reason
thereof.
6. WAIVERS BY GUARANTOR.
Guarantor waives: (a) notice of acceptance of this Guarantee by
Lenders; (b) notice of presentment, demand for payment, notice of
dishonor or protest of any of Borrower's obligations or the
obligation of any person, firm, or corporation held by Lenders as
collateral security for Borrower's obligation; (c) notice of the
failure of any person, firm, or corporation to pay to Lenders any
indebtedness held by Lenders as collateral security for any
obligation of Borrower; (d) failure of Lenders to obtain and
perfect or maintain the perfection or priority of any security
interest or lien on property to secure any indebtedness of
Borrower; and (e) all defenses, offsets and counterclaims which
Guarantor may at any time have to any claim of Lenders against
Borrower.
7. SUBROGATION.
Nothing herein contained is intended or shall be construed to give
to Guarantor any right of subrogation in or under any note,
security document or any other loan document evidencing in any way
or relating to any obligation of Borrower to Lenders which is or
may be covered by this Guarantee, any right to participate in any
way therein, or in the right, title and interest of Lenders
3
in or to any collateral covered by any loan or security documents
relating to any such obligations notwithstanding any payments made
by Guarantor under this Guarantee, all such rights of subrogation
and participation being hereby expressly waived and released.
8. SUBORDINATION.
In the event that for any reason whatsoever, Borrower is now or
hereafter becomes indebted to Guarantor, Guarantor agrees that the
amount of such indebtedness and all interest thereon shall at all
times be subordinate as to lien, time of payment and in all other
respects to all obligations of Borrower to Lenders which are
covered by this Guarantee, and that Guarantor shall not be entitled
to enforce or receive payment thereof until all sums then due and
owing to Lenders shall have been paid in full. If any payment shall
have been made to Guarantor by Borrower on any said indebtedness
during any time that there are obligations outstanding from
Borrower to Lenders which are covered by this Guarantee, Guarantor
shall hold in trust all such payments for the benefit of Lenders
and shall make said payments to Lenders to be credited and applied
against obligations of Borrower to Lenders, whether matured or
unmatured, in accordance with the discretion of Lenders.
9. REPRESENTATIONS BY GUARANTOR.
Guarantor represents and warrants that:
(i) at the time of the execution and delivery of this Guarantee,
nothing exists to impair the effectiveness of the liability of
Guarantor to Lenders hereunder, or the immediate taking effect of
this Guarantee as the sole agreement between Guarantor and Lenders
with respect to guaranteeing Borrower's obligation to Lenders;
(ii) it is in the best interest of Guarantor to execute this
Guarantee inasmuch as Guarantor will derive substantial direct and
indirect benefits from the Advances made from time to time to
Borrower by Lenders pursuant to the Second Amended and Restated
Facility Agreement of even date herewith (the "Second Amended
Facility Agreement"); and
(iii) all representations and warranties contained in Article V of
the Second Amended Facility Agreement, insofar as the
representations and warranties contained therein are applicable to
Guarantor and its properties, are true and correct in all material
respects, each such representation and warranty set forth in such
Article (insofar as applicable to Guarantor) and all other terms of
the Second Amended Facility Agreement to which reference is made
therein, together with all related definitions and ancillary
provisions, being hereby incorporated herein by reference as though
specifically set forth in this Section.
10. REMEDIES OF LENDERS.
Lenders may at their option proceed in the first instance against
Guarantor to collect any obligation covered by this Guarantee,
without first proceeding against Borrower for said obligation, or
any other person, firm or corporation liable for said obligation,
and without first resorting to any property at any time held by
Lenders as collateral security for said obligation and without any
marshalling of assets whatsoever. Guarantor hereby confirms the
grant of the security interest granted under that certain Amended
and Restated Security Agreement of even date herewith among
Guarantor and Lenders as secured parties under the Second Amended
4
and Restated Credit Facility Agreement of even date herewith among
Borrower, the guarantors named therein and Lenders.
11. CONSTRUCTION AND BENEFIT.
This Guarantee is delivered and made in, and shall be construed
pursuant to and governed by, the laws of the State of Florida, and
is binding upon Guarantor and its legal representatives and
successors, and shall inure to the benefit of Lenders, their
respective successors and assigns.
12. MISCELLANEOUS.
In the event it becomes necessary for Lenders to exercise their
rights under this Guarantee, whether suit be brought or not,
Guarantor shall be liable for all costs and attorneys' fees
incurred by Lenders, including costs and attorneys' fees incurred
by Lenders on appeal. To the extent Guarantor is obligated to make
any payments to Lenders under this Guarantee, Lenders may offset
and retain in payment of said amounts any and all monies of
Guarantor in the possession of any of Lenders or any of their
affiliates at any time, including, but not limited to, any accounts
of Guarantor at any of Lenders. In the further event Lenders obtain
a final judgment against Guarantor upon this Guarantee, the
judgment shall bear interest not at the judgment rate but at the
highest rate permitted by applicable law from time to time in
effect at the time of said judgment. Further, Guarantor agrees that
the proper venue for any action which may be brought under this
Guarantee, in addition to any other venue permitted by law, shall
be in the county in which is located Lenders' business office as
designated above or the office of an assignee of this Guarantee.
The liability of Guarantor hereunder, if more than one, shall be
joint and several. The term "Lenders" shall be deemed to include
the aforementioned Lenders and all their respective departments and
any individual, partnership or corporation acting as their nominee
or agent, and any of their respective corporate subsidiaries or
affiliates, the stock of which is owned or controlled, directly or
indirectly, by it or by any affiliate of any of Lenders. The term
"Borrower" shall include the individual or individuals,
association, partnership, corporation or other entity named herein
as Borrower and (a) any successor individual or individuals,
association, partnership, corporation or other entity to which all
or substantially all of the business or assets of said Borrower
shall have been transferred, (b) in the case of a partnership
Borrower, any new partnership which shall have been created by
reason of the admission of any new partner or partners therein
and/or the dissolution of the existing partnership by the death,
resignation or other withdrawal of any partner, and (c) in the case
of a corporate Borrower, any other corporation into or with which
said Borrower shall have been merged, consolidated, reorganized,
purchased or absorbed.
13. FINANCIAL STATEMENTS.
At the request of Lenders, Guarantor shall, from time to time,
prepare and deliver to Lenders a complete and current financial
statement of Guarantor setting forth all the assets and liabilities
of Guarantor (and to the extent any person other than Guarantor has
any interest in said assets or any person other than Guarantor is
jointly liable for any of said obligation, said matters shall be
set forth in their entirety in the financial statements) all signed
by Guarantor under oath as being true and correct. To the extent
any assets or liabilities set forth on said financial statement are
owned by Guarantor for which there is any such joint liability, all
said assets shall be so specified and set forth.
14. COMPLETE AGREEMENT.
5
The whole of this Guarantee is herein set forth and there is no
verbal or other written agreement, and no understanding or custom
affecting the terms hereof. This Guarantee can be modified only by
a written instrument signed by the party to be charged therewith.
THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECOND AMENDED AND RESTATED
GUARANTEE AGREEMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDERS ENTERING INTO THIS SECOND AMENDED AND RESTATED GUARANTEE
AGREEMENT.
6
IN WITNESS WHEREOF, Guarantor has signed this agreement on the ___ day of
April, 1999.
Signed, sealed and delivered
in the presence of: [NAME OF SUBSIDIARY]
a ___________ corporation
__________________________________
WITNESS
__________________________________ By:________________________________
WITNESS Thomas R. Pledger, Vice-President
ADDRESS____________________________
___________________________________
STATE OF __________________
COUNTY OF ________________
The foregoing instrument was acknowledged before me by Thomas R. Pledger, as
Vice-President of [NAME OF SUBSIDIARY], a _____________ corporation, the ___ day
of April, 1999.
___________________________________
(NOTARIAL SEAL) NOTARY PUBLIC
My commission expires:
7
EXHIBIT "H" FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Facility
Agreement dated as of April 22, 1999 (as amended or modified from time to time,
the "Credit Facility Agreement") among Dycom Industries, Inc., a Florida
corporation ("Borrower"), Lenders (as defined in the Credit Facility Agreement)
and Dresdner Bank Lateinamerika AG, as administrative agent for Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
"Assignor" and "Assignee" referred to on Schedule I hereto agree
as follows:
1. Assignor hereby sells and assigns to Assignee, and Assignee
hereby purchases and assumes from Assignor, an interest in and to
Assignor's rights and obligations under the Credit Facility Agreement and
other loan documents as of the date hereof equal to the percentage
interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Facility Agreement. After giving effect to
such sale and assignment, Assignee's Commitment and the amount of the
Advances owing to Assignee will be as set forth on Schedule 1 hereto.
2. Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Credit Facility Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be
created under or in connection with, the Credit Facility Agreement or any
other instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance or observance by
Borrower of any of its obligations under the Credit Facility Agreement or
any other instrument or document furnished pursuant thereto; and (iv)
attaches the interest in the Notes held by Assignor and requests that
Administrative Agent exchange such Notes for a new Notes payable to the
order of Lenders, including Assignee.
3. Assignee (i) confirms that it has received a copy of the Credit
Facility Agreement, together with copies of the Financial Statements and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance
upon Administrative Agent, Assignor or any other Lenders and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Facility Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes
Administrative Agent to take such action as and to exercise such powers
and discretion under the Credit Facility Agreement as are delegated to
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (v) agrees that it
will perform in accordance with their terms all of the obligations that by
the terms of the Credit Facility Agreement are required to be performed by
it as a Lender.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to Administrative Agent for acceptance and recording by
Administrative Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof
by Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by Administrative Agent, as of
the Effective Date, (i) Assignee shall be a party to the Credit Facility
Agreement and the other Loan Documents and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Facility Agreement.
6. Upon such acceptance and recording by Administrative Agent, from
and after the Effective Date, Administrative Agent shall make all payments
under the Credit Facility Agreement and the Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to Assignee.
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Facility Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Florida.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and
Acceptance by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, Assignor and Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the
date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Advances assigned: $__________
Principal amount of Pro Rata Amount of
Notes payable to Assignee: $__________
Principal amount of Pro Rata Amount of
Notes payable to Assignor: $__________
Effect Date: _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By
-----------------------------------
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By
-----------------------------------
Title:
[Address]
Accepted [and Approved](1) this
__________ day of _______________, 199_
_________________________, as Administrative Agent
- --------
(1) Required if the Assignee is an Eligible Assignee solely by reason of
clause (v) of the definition of "Eligible Assignee".
By
-------------------------------
Title:
[Approved this __________ day
of _______________, 199_
Dycom Industries, Inc.
By ](2)
-------------------------------
Title:
- --------
(2) if the Assignee is an Eligible Assignee solely by reason of clause (v) of
the definition of "Eligible Assignee".