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EXHIBIT 4
11-8-94
Execution Draft
REVOLVING LOAN AGREEMENT
Dated as of November 9, 1994
By And Among
POE & BROWN, INC.
and
SUN BANK, NATIONAL ASSOCIATION,
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Accounting Terms and Determination . . . . . . . . . . . . . . . . . . . . . 11
Section 1.3 Other Definitional Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1.4 Exhibits and Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE II REVOLVING LOANS
Section 2.1 Commitment; Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.2 Notes; Repayment of Principal . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.3 Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.4 Extension of Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.5 Reduction of Revolving Loan Commitments . . . . . . . . . . . . . . . . . . . 13
ARTICLE III THIS ARTICLE IS NOT APPLICABLE
ARTICLE IV GENERAL LOAN TERMS
Section 4.1 Funding Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.2 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.3 Interest: Default, Payment and Determination . . . . . . . . . . . . . . . . . 14
Section 4.4 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.5 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.6 Voluntary Prepayments of Borrowings . . . . . . . . . . . . . . . . . . . . . 15
Section 4.7 Payments, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.8 LIBOR Rate Not Ascertainable, etc . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.9 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.10 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 4.11 This section is not applicable . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.12 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.13 Assumptions Concerning Funding of Eurodollar Advances. . . . . . . . . . . . . 19
Section 4.14 This section is not applicable . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.15 This section is not applicable . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.16 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.17 Benefits to Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.18 Limitation on Certain Payment Obligations . . . . . . . . . . . . . . . . . . 20
Section 4.19 Change from One Type of Borrowing to Another . . . . . . . . . . . . . . . . . 20
ARTICLE V. CONDITIONS TO BORROWINGS
Section 5.1 Conditions Precedent to Initial Loans . . . . . . . . . . . . . . . . . . . . 20
Section 5.2 Conditions to All Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.3 Certification for Each Borrowing . . . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE VI REPRESENTATIONS AND WARRANTIES
Section 6.1 Organization and Qualification . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.2 Corporate Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.3 Borrower Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.4 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.5 Actions Pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.6 Representations; No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.7 Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.8 Enforceability of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.9 Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.10 Use of Proceeds; Federal Reserve Regulations . . . . . . . . . . . . . . . . . 26
Section 6.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.12 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.13 Outstanding Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.14 Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 6.15 Pollution and Other Regulations . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.16 Possession of Franchises, Licenses, Etc . . . . . . . . . . . . . . . . . . . 28
Section 6.17 Patents, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.18 Governmental Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.19 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.20 Insurance Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.21 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.22 Intercompany Loans; Dividends . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.23 Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.24 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.25 First, Perfected Security Interest in Collateral . . . . . . . . . . . . . . . 29
Section 6.26 SEC Compliance and Filings . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.27 Capital Stock of Borrower and Related Matters. . . . . . . . . . . . . . . . . 30
Section 6.28 Places of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE VII AFFIRMATIVE COVENANTS
Section 7.1 Corporate Existence, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.2 Compliance with Laws, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.3 Payment of Taxes and Claims, Etc . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.4 Keeping of Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.5 Visitation, Inspection, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.6 Insurance; Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . 31
Section 7.7 Reporting Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.8 Maintain the Following Financial Covenants . . . . . . . . . . . . . . . . . . 35
Section 7.9 Notices Under Certain Other Indebtedness . . . . . . . . . . . . . . . . . . . 35
Section 7.10 Additional Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 7.11 Ownership of Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VIII NEGATIVE COVENANTS
Section 8.1 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 8.2 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 8.3 Sales, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.4 Mergers, Acquisitions, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 8.5 Investments, Loans, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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Section 8.6 Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.7 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.8 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.9 Changes in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 8.10 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.11 Additional Negative Pledges . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.12 Limitation on Payment Restrictions Affecting Consolidated
Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.13 Actions Under Certain Documents . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.14 Financial Statements; Fiscal Year . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.15 Change of Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.16 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.17 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.18 Changes in Debt Instruments. . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 8.19 THIS SECTION IS NOT APPLICABLE
Section 8.20 No Issuance of Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.21 No Payments on Subordinated Debt. . . . . . . . . . . . . . . . . . . . . . . 41
Section 8.22 Insurance Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE IX EVENTS OF DEFAULT
Section 9.1 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 9.2 Covenants Without Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 9.3 Other Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.4 Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.5 Non-Payments of Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.6 Defaults Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.7 Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.8 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.9 Money Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.10 Ownership of Credit Parties and Pledged Entities . . . . . . . . . . . . . . . 43
Section 9.11 Change in Control of Borrower . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.12 Default Under Other Credit Documents . . . . . . . . . . . . . . . . . . . . . 43
Section 9.13 Management. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 9.14 Attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 9.15 Default Under Subordinated Loan Documents . . . . . . . . . . . . . . . . . . 44
Section 9.16 Material Adverse Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE X THIS ARTICLE IS NOT APPLICABLE
ARTICLE XI MISCELLANEOUS
Section 11.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 11.2 Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 11.3 No Waiver; Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 11.4 Payment of Expenses, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 11.5 Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.6 Benefit of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.7 Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . . . . 49
Section 11.8 Independent Nature of Lender' Rights . . . . . . . . . . . . . . . . . . . . . 50
Section 11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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Section 11.10 Effectiveness; Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.12 Independence of Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.13 Change in Accounting Principles, Fiscal Year or Tax
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.14 Headings Descriptive; Entire Agreement . . . . . . . . . . . . . . . . . . . 50
Section 11.15 Time is of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.16 Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 11.17 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SCHEDULES
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Schedule 6.1 Organization and Ownership of Subsidiaries
Schedule 6.4 Tax Filings and Payments
Schedule 6.5 Certain Pending and Threatened Litigation
Schedule 6.7 Liens on Borrower Assets
Schedule 6.11 Employee Benefit Matters
Schedule 6.13 Outstanding Debt and Defaults
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.17 Patent, Trademark, License, and Other
Intellectual Property Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 6.23 Burdensome Restrictions
Schedule 6.28(a) Places of Business
Schedule 6.28(b) Material Places of Business
Schedule 8.1(b) Existing Indebtedness
Schedule 8.2 Existing Liens
Schedule 9.11 Permitted Stockholders
EXHIBITS
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Exhibit A Form of Revolving Credit Note
Exhibit B Form of Guaranty Agreement
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Notice of Conversion/Continuation
Exhibit E Form of Pledge Agreement
Exhibit F Form of Security Agreement
Exhibit G Form of Closing Certificate
Exhibit H Form of Opinion of Borrower's Counsel
Exhibit I Form of Contribution Agreement
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REVOLVING LOAN AGREEMENT
THIS REVOLVING LOAN AGREEMENT, dated as of November 9, 1994 (the
"Agreement") by and among POE & BROWN, INC. (the "Borrower"), a Florida
corporation, and SUN BANK, NATIONAL ASSOCIATION, a national banking association
(the "Lender").
W I T N E S E T H:
THAT for and in consideration of the mutual covenants made herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1 DEFINITIONS. As used in this Agreement, and in any
instrument, certificate, document or report delivered pursuant thereto, the
following terms shall have the following meanings (to be equally applicable to
both the singular and plural forms of the term defined):
"ADVANCE" shall mean any principal amount advanced and
remaining outstanding at any time under the Revolving Loan which Advance shall
be made or outstanding as a Base Rate Advance or a Eurodollar Advance, as the
case may be.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"AGREEMENT" shall mean this Revolving Loan Agreement, as
originally executed and as it may be from time to time supplemented, amended,
restated, renewed or extended and in effect.
"APPLICABLE MARGIN" shall mean:
(a) 0.00% for a Base Rate Advance
(b) Until December 31, 1994 0.50% for a Eurodollar
Advance. On and after December 31, 1994, the Applicable Margin for a
Eurodollar Advance shall be the percentage designated below based on
the Borrower's Funded Debt to Capital Ratio and the Borrower's Funded
Debt to Cash Flow Ratio, measured quarterly:
Funded Debt to Capital
Funded Debt > or = .45 > .35 & < .45 < or = .35
to Cash Flow
> or = 1.00x L + 1.25% L + 1.00% L + 0.75%
< 1.00x L + 1.00% L + 0.75% L + 0.50%
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provided, however, that adjustments, if any, to the Applicable Margin based on
changes in the Ratios set forth above shall be made and become effective on the
first day of the second fiscal quarter after the Statement Date.
"ASSET VALUE" shall mean, with respect to any property or
asset of any Consolidated Company as of any particular date, an amount equal to
the greater of (i) the then book value of such property or asset as established
in accordance with GAAP, and (ii) the then fair market value of such property
or asset as determined in good faith by the board of directors of such
Consolidated Company.
"AVAILABILITY FEE" shall mean a fee based upon the unused
portion of the Revolving Loan Commitment of the Lender. Such fee shall be
computed at a rate equal to 0.25% per annum (calculated on an actual/360 day
year) on the average daily unused portion of the Revolving Loan Commitment, and
shall be payable to the Lender quarterly in arrears on the last calendar day of
each fiscal quarter of Borrower and on the Maturity Date.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C. Section Section 101 et
seq.).
"BASE ADVANCE RATE" shall mean, with respect to a Base Rate
Advance, the rate obtained by adding (A) the Base Rate, and (B) the Applicable
Margin for a Base Rate Advance.
"BASE RATE" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates) the higher
of (a) the rate which the Lender designates from time to time to be its prime
lending rate, as in effect from time to time, and (b) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%) (i.e. 50
basis points) per annum. The Lender's prime lending rate is a reference rate
and does not necessarily represent the lowest or best rate charged to its
customers; the Lender may make commercial loans or other loans at rates of
interest at, above or below the Lender's prime lending rate.
"BASE RATE ADVANCE" shall mean an Advance bearing interest
based on the Base Rate.
"BASE RATE LOAN" shall mean a Loan which bears interest at the
Base Advance Rate.
"BORROWING" shall mean the making of a Loan, the extension of
an Advance, or the conversion of a Loan of one Type into a Loan of another
Type.
"BUSINESS DAY" shall mean, with respect to Eurodollar
Advances, any day other than a day on which commercial banks are closed or
required to be closed for domestic and international business, including
dealings in Dollar deposits on the London Interbank Market, and with respect to
all other Loans and matters, any day other than Saturday, Sunday and a day on
which commercial banks are required to be closed for business in Orlando,
Florida.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all lease
obligations which have been or are required to be, in accordance with GAAP,
capitalized on the books of the lessee.
"CAPITAL STOCK" of any Person shall mean any shares, equity or
profits interests, participations or other equivalents (however designated) of
capital stock and any rights, warrants or options, or other securities
convertible into or exercisable or exchangeable for any such shares, equity or
profits interest, participations or other equivalents, directly or indirectly
(or any equivalent ownership interest, in the case of a Person which is not a
Corporation.
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"CERCLA" has the meaning set forth in Section 6.15(a) of this
Agreement.
"CLOSING DATE" shall mean the date on or before November 17,
1994, on which the initial Loan is made and the conditions set forth in Section
5.1 are satisfied or waived in accordance with Section 11.3.
"CLOSING FEES" shall mean the fees paid by the Borrower to the
Lender as otherwise agreed.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"COLLATERAL" shall mean a first, perfected security interest
(subject to the Permitted Liens) in all the assets, real and personal,
intangible and tangible, of the Consolidated Companies, including a pledge of
all the Capital Stock of each Consolidated Subsidiary, now owned or hereafter
acquired.
"CONSENT BY LESSOR" shall mean the written agreement to the
Lender by a landlord for any Material Place of Business which is leased by any
Consolidated Company by which said landlord agrees that any landlord's lien,
security interest, or any other encumbrance which the landlord may at any time
have in or to any property of the Consolidated Company as a tenant for said
Material Place of Business is subordinate in all respects to the Lien granted
Lender in any personal property of said Consolidated Company.
"CONSOLIDATED COMPANIES" shall mean, collectively, Borrower
and all of its Subsidiaries.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal
period of Borrower, the net income (or loss) of the Consolidated Companies on a
consolidated basis for such period (taken as a single accounting period)
determined in conformity with GAAP; provided that there shall be excluded
therefrom (i) any items of gain or loss, together with any related provision
for taxes, which were included in determining such consolidated net income and
were not realized in the ordinary course of business or the result of a sale of
assets other than in the ordinary course of business; and (ii) the income (or
loss) of any Person accrued prior to the date such Person becomes a Subsidiary
of Borrower or (in the case of a Person other than a Subsidiary) is merged into
or consolidated with any Consolidated Company, or such Person's assets are
acquired by any Consolidated Company.
"CONSOLIDATED NET WORTH" shall mean as of the date of
determination, the Borrower's Shareholders' Equity as determined in accordance
with GAAP.
"CONSOLIDATED SUBSIDIARY" shall mean, as at any particular
time, any corporation included as a Consolidated Subsidiary of Borrower in
Borrower's most recent financial statements furnished to its stockholders and
certified by Borrower's independent public accountants.
"CONTRACTUAL OBLIGATION" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of
the property owned by it is bound.
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement,
the Note, the Guaranty Agreement, the Pledge Agreement and all other Security
Documents.
"CREDIT PARTIES" shall mean, collectively, each of Borrower,
the Guarantors, and every other Person who from time to time executes a Credit
Document with respect to all or any portion of the Obligations.
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"DEFAULT" shall mean any condition or event which, with notice
or lapse of time or both, would constitute an Event of Default.
"DEFAULT RATE" shall mean the rate of interest set forth in
Section 4.3 hereof.
"DOLLAR" and "U.S. DOLLAR" and the sign "$" shall mean lawful
money of the United States of America.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public health and
safety, relating to (i) emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals or industrial toxic or hazardous
constituents, substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law into the environment (including without limitation, ambient air, surface
water, ground water, land surface or subsurface strata), or (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of any Hazardous Substance, petroleum including
crude oil or any fraction thereof, any petroleum product or other waste,
chemicals or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation (i) the Clean Air Act (42 U.S.C. Section 7401 et seq.), (ii)
the Clean Water Act (33 U.S.C. Section 1251 et sec.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.) and (v) the
Comprehensive Environmental Response Compensation and Liability Act, as amended
by the Superfund Amendments and Reauthorization Act (42 U.S.C. Section 9601 et
seq.).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) which is a member of a group of
which that Person is a member and which is either within a controlled group of
corporations or under common control within the meaning of the regulations
promulgated under Section 414 of the Code and the regulations promulgated
thereunder.
"EURODOLLAR ADVANCE" shall mean an Advance bearing interest
based on LIBOR.
"EVENT OF DEFAULT" shall have the meaning set forth in Article
IX hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute thereto.
"EXECUTIVE OFFICER" shall mean with respect to any Person
(other than a Guarantor), the President, any Vice President, Chief Financial
Officer, Treasurer, Secretary and any Person holding comparable offices or
duties, and with respect to a Guarantor, the President, any Vice President or
the Treasurer.
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"FACILITY" or "FACILITIES" shall mean the Revolving Loan
Commitment and Revolving Loans, as the context may indicate.
"FEDERAL FUNDS RATE" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member banks
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 Atlanta, or, 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 the Lender from three Federal
funds brokers of recognized standing selected by the Lender.
"FIRST UNION" shall mean First Union National Bank of
Florida, a national banking association, and with respect to which the
Consolidated Companies are currently indebted under one or more credit
facilities.
"FUNDED DEBT" shall mean all Indebtedness for money borrowed,
Indebtedness evidenced or secured by purchase money liens, Capitalized Lease
Obligations, conditional sales contracts and similar title retention debt
instruments, (regardless of when such Indebtedness matures). The calculation
of Funded Debt shall include (without duplication) (i) all Funded Debt of the
Consolidated Companies, (ii) all Funded Debt of other Persons, other than
Subsidiaries, which has been Guaranteed by a Consolidated Company, which is
supported by a letter of credit issued for the account of a Consolidated
Company, or as to which and to the extent a Consolidated Company or its assets
have otherwise become liable for payment thereof, (iii) all Indebtedness for
money borrowed by the Consolidated Companies pursuant to lines of credit or
revolving credit facilities (regardless of the term thereof), and (iv) all
Subordinated Debt.
"FUNDED DEBT TO CAPITAL RATIO" shall mean as of the applicable
date, the ratio of (i) Funded Debt to (ii) Capital, for the Consolidated
Companies, on a consolidated basis.
"FUNDED DEBT TO CASH FLOW RATIO" shall mean as of the
applicable date, the ratio of (i) Funded Debt to (ii) Consolidated Net Income
(Loss) plus depreciation and amortization, for the Consolidated Companies, on a
consolidated basis.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease, dividend, or
other obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner including, without limitation, any obligation or
arrangement of such Person (i) to purchase or repurchase any such primary
obligation; (ii) to advance or supply funds (a) for the purchase or payment of
any such primary obligation, or (b) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet condition of the primary obligor; (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation; (iv) to indemnify the owner of such
primary obligation against loss in respect thereof; (v) by which and to the
extent said Person or its assets have otherwise become liable for payment of
any such primary obligation; or (vi) supporting a letter of credit issued for
the account of said primary obligor.
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"GUARANTORS" shall mean, collectively, all present and future
Material Subsidiaries, and their respective successors and permitted assigns.
"GUARANTY" shall mean any contractual obligation, contingent
or otherwise, of a Person with respect to any Indebtedness or other obligation
or liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect to which said Guaranty is made or, if not so
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"GUARANTY AGREEMENTS" shall mean, collectively, the Guaranty
Agreement executed by each of the Guarantors from time to time in favor of the
Lender and the Lender, substantially in the form of Exhibit B as the same may
be amended, restated or supplemented from time to time.
"HAZARDOUS MATERIALS" shall mean oil, petroleum or chemical
liquids or solids, liquid or gaseous products, asbestos, or any other hazardous
waste or Hazardous Substances, including, without limitation, hazardous medical
waste or any other substance described in any Hazardous Materials Law.
"HAZARDOUS MATERIALS LAW" shall mean the Comprehensive
Environmental Response Compensation and Liability Act as amended by the
Superfund Amendments and Reauthorization Act, 42 U.S.C. Section 9601, the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, the state
hazardous waste laws, as such laws may from time to time be in effect, and
related regulations, and all similar laws and regulations.
"HAZARDOUS SUBSTANCES" has the meaning assigned to that term
in CERCLA.
"INDEBTEDNESS" of any Person shall mean, without duplication
(i) all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase price
of property or services, obligations evidenced by bonds, debentures, notes or
other similar instruments, and contingent reimbursement obligations under
undrawn letters of credit); (ii) all Capitalized Lease Obligations; (iii) all
Guaranteed Indebtedness of such Person; (iv) Indebtedness of others secured by
any Lien upon property owned by such Person, whether or not assumed; and (v)
obligations or other liabilities under currency contracts, interest rate
hedging contracts, or similar agreements or combinations thereof.
"INTERCOMPANY CREDIT DOCUMENTS" shall mean, collectively, the
promissory notes and all related loan, subordination, and other agreements, to
the extent that they exist, relating in any manner to the Intercompany Loans.
"INTERCOMPANY LOANS" shall mean, collectively, (i) the loans
more particularly described on Schedule 6.22, and (ii) those loans or other
extensions of credit from time to time made by any Consolidated Company to
another Consolidated Company satisfying the terms and conditions set forth in
Section 8.1(e) or as may otherwise be approved in writing by the Lender.
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"INTEREST PERIOD" shall mean with respect to Eurodollar
Advances, the period of 1, 2, 3, 6 or 12 months selected by the Borrower under
Section 4.4 hereof.
"INVESTMENT" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"LENDER" or "LENDER" shall mean Sun Bank, National Association
and each eligible assignee thereof, if any.
"LENDING OFFICE" shall mean for the Lender the office the
Lender may designate in writing from time to time to Borrower and the Lender
with respect to each Type of Loan.
"LIBOR" shall mean, for any Interest Period, the offered rates
for deposits in U.S. Dollars for a period comparable to the Interest Period
appearing on the Reuters Screen LIBOR Page as of 11:00 a.m., (London, England
time), on the day that is two Business Days prior to the first day of the
Interest Period. If two or more of such rates appear on the Reuters Screen
LIBOR Page, the rate for that Interest Period will be the arithmetic mean of
such rates, rounded, if necessary, to the next higher 1/16 of 1.0%; and in
either case as such rates may be adjusted for any applicable reserve
requirements. If the foregoing rate is unavailable from the Reuters Screen for
any reason, then such rate shall be determined by the Lender from Telerate Page
3750 or, if such rate is also unavailable on such service, then on any other
interest rate reporting service of recognized standing designated in writing by
the Lender to Borrower and the Lender; in any such case rounded, if necessary,
to the next higher 1/16 of 1.0%, if the rate is not such a multiple.
"LIBOR ADVANCE RATE" shall mean, with respect to each Interest
Period for a Eurodollar Advance, the rate obtained by adding (A) LIBOR for such
Interest Period, and (B) the Applicable Margin for a Eurodollar Advance.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any capitalized lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in connection with the issuance of industrial development revenue
bonds or pollution control revenue bonds, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code of any
jurisdiction.
"LOAN" OR "LOANS" shall mean, collectively, the Revolving
Loans.
"MARGIN REGULATIONS" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time.
"MATERIAL PLACE OF BUSINESS" shall mean the Places of
business set forth in Schedule 6.28(b) hereto and any other or new Place of
Business which is either (i) owned by a Consolidated Company, or (ii) leased by
a Consolidated Company, at which the Consolidated Company has at said location
tangible personal property which is material to the operations of that
Consolidated Company.
"MATERIALLY ADVERSE EFFECT" shall mean the occurrence of an
event which could reasonably be expected to cause a materially adverse change
in (i) the business, results of operations, financial condition, assets or
prospects of the Consolidated Companies, taken as a whole, (ii) the ability of
the Borrower to perform
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its obligations under this Agreement, or (iii) the ability of the Credit
Parties (taken as a whole) to perform their respective obligations under the
Credit Documents.
"MATERIAL SUBSIDIARY" shall mean (i) each entity listed in
Schedule 6.1 hereto, and (ii) each other Subsidiary of Borrower, now existing
or hereinafter established or acquired, that at any time prior to the Maturity
Date, has or acquires assets in excess of $1,000,000.
"MATURITY DATE" shall mean the earlier of (i) November 9,
1997, unless said date is otherwise extended as provided under Section
2.4,hereof, and (ii) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
pursuant to the provisions of Article IX hereof.
"MULTI-EMPLOYER PLAN" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NOTE" shall mean the Revolving Credit Note as originally
executed and as the same may be from time to time supplemented, modified,
amended, renewed or extended.
"NOTICE OF BORROWING" shall have the meaning provided in
Section 4.1 hereof, the form of which is attached hereto as Exhibit C.
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning
provided in Section 4.1 hereof, the form of which is attached hereto as Exhibit
D.
"OBLIGATIONS" shall mean all amounts owing to the Lender
pursuant to the terms of this Agreement or any other Credit Document, including
without limitation, all Loans (including all principal and interest payments
due thereunder), fees (including reasonable attorneys' fees as permitted under
any Credit Document), expenses, indemnification and reimbursement payments
(including any reimbursement obligation with respect to any letter of credit,
if drawn upon after any Event of Default which has occurred and is continuing),
indebtedness, liabilities, and obligations of the Credit Parties, direct or
indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising, together with all renewals, extensions, modifications or
refinancings thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
and any successor thereto.
"PERMITTED ACQUISITIONS" shall mean the acquisition, by
merger, consolidation, purchase or otherwise, by any Consolidated Company of
any Person or substantially all the assets of said Person who is not Affiliated
with the Borrower, to the extent the purchase price or the value of said
acquisition (as reasonably determined by the board of directors of the
acquiring Consolidated Company) for said acquisition is less than $5,000,000
(determined as including any Funded Debt to be assumed in said acquisition),
and after which no Event of Default will occur or be continuing.
"PERMITTED LIENS" shall mean those Liens expressly permitted
by Section 8.2 hereof.
"PERSON" shall mean any individual, partnership, joint
venture, firm, corporation, trust, unincorporated association, government or
any department or agency thereof, and any other entity whatsoever.
"PLACES OF BUSINESS" shall mean those locations owned or
leased by any Consolidated Company or at which any assets of any Consolidated
Company are located, as set forth in Schedule 6.28(a) hereto.
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"PLAN" shall mean any employee benefit plan, program,
arrangement, practice or contract, maintained by or on behalf of the Borrower
or an ERISA Affiliate, which provides benefits or compensation to or on behalf
of employees or former employees, whether formal or informal, whether or not
written, including but not limited to, the following types of plans:
(i) EXECUTIVE ARRANGEMENTS - any bonus, incentive
compensation, stock option, deferred compensation, commission,
severance, "golden parachute", "rabbi trust", or other executive
compensation plan, program, contract, arrangement or practice;
(ii) ERISA PLANS - any "employee benefit plan" defined in
Section 3(3) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension
plan, savings or thrift plan, stock bonus plan, employee stock
ownership plan, Multi-Employer Plan, or any plan, fund, program,
arrangement or practice providing for medical (including
post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits; and
(iii) OTHER EMPLOYEE FRINGE BENEFITS - any stock purchase,
vacation, scholarship, day care, prepaid legal services, severance pay
or other fringe benefit plan, program, arrangement, contract or
practice.
"PLEDGE AGREEMENT" shall mean, collectively, that certain
Pledge Agreement executed in favor of the Lender, substantially in the form of
Exhibit E providing for the grant of first, perfected Liens on the Pledged
Stock as the same may be amended, restated or supplemented from time to time.
"PLEDGED STOCK" shall mean, collectively, 100% of all the
issued and outstanding Capital Stock, together with all warrants, stock
options, and other purchase and conversion right with respect to such Capital
Stock, of each Material Subsidiary at any time outstanding.
"REGULATION D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"REUTERS SCREEN" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuters
Monitor Money Rates Service (or such other page as may replace that page on
that service for the purpose of displaying rates comparable to LIBOR).
"REVOLVING CREDIT NOTE" shall mean the promissory notes
evidencing the Revolving Loans in the form attached hereto as Exhibit A.
"REVOLVING LOANS" shall mean, collectively, the revolving
credit loans made to Borrower by the Lender pursuant to Section 2.1 hereof.
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"REVOLVING LOAN COMMITMENT" shall mean, the amount of
$10,000,000 as the same may be decreased from time to time as a result of any
reduction thereof pursuant to Section 2.5 hereof, or any amendment thereof
pursuant to Section 11.2 hereof.
"SECURITY AGREEMENT" shall mean, collectively, that certain
Security Agreement executed in favor of the Lender, substantially in the form
of Exhibit E providing for the grant of first, perfected Liens on such of the
Collateral not constituting Pledged Stock as the same may be amended, restated
or supplemented from time to time, subject only to Permitted Liens.
"SECURITY DOCUMENTS" shall mean such security agreements,
financing statements, pledge agreements, blank stock powers, mortgage documents
and other documents as are necessary to grant to the Lender a first, perfected
security interest in the Collateral.
"SHAREHOLDERS' EQUITY" shall mean, with respect to any Person
as at any date of determination, the shareholders' equity of such Person,
determined on a consolidated basis in conformity with GAAP.
"STATEMENT DATE" shall mean the last day of the fiscal quarter
of Borrower to which the quarterly financial statements relate as delivered
from time to time by the Borrower under Section 7.7(b) hereof.
"SUBORDINATED DEBT" shall mean all present and future
Indebtedness of Borrower and its Subsidiaries to any Person other than to the
Lender under this Agreement, and which Indebtedness is subordinated to all
Obligations due the Lender under this Agreement on terms and conditions
satisfactory in all respects to the Lender including without limitation, with
respect to interest rates, payment terms, maturities, amortization schedules,
covenants, defaults, remedies, collateral and subordination provisions, as
evidenced by the written approval of the Lender. Including, if required by the
Lender, a separate subordination agreement from the holder of said Debt to the
Lender.
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the combined voting power of all classes of
voting stock or other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such Person, either directly
or indirectly through one or more other Subsidiaries.
"TAXES" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other charges
of whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the United States, or any
state, local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and all interest,
penalties, additions to tax and similar liabilities with respect thereto.
"TELERATE" shall mean, when used in connection with any
designated page and the "Certificate of Deposit Rate" or "LIBOR," the display
page so designated on the Dow Jones Telerate Service (or such other page as may
replace that page on that service for the purpose of displaying rates
comparable to the "Certificate of Deposit Rate" or "LIBOR").
"CAPITAL" shall mean the sum of Funded Debt and Consolidated
Net Worth of the Consolidated Companies.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances or Eurodollar Advances.
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"WHOLLY OWNED SUBSIDIARY" shall mean any Subsidiary, all the
stock or ownership interest of every class of which, except directors'
qualifying shares, shall, at the time as of which any determination is being
made, be owned by Borrower either directly or indirectly.
SECTION 1.2 ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms shall be construed herein,
all accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP.
SECTION 1.3 OTHER DEFINITIONAL TERMS. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Article, Section, Schedule, Exhibit and like
references are to this Agreement unless otherwise specified.
SECTION 1.4 EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached hereto are by reference made a part hereof.
ARTICLE II
REVOLVING LOANS
SECTION 2.1 COMMITMENT; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein
set forth, the Lender agrees to make to Borrower from time to time on
and after the Closing Date, but prior to the Maturity Date, Revolving
Loans in an aggregate amount outstanding at any time not to exceed the
Lender's Revolving Loan Commitment. Borrower shall be entitled to
borrow, repay and reborrow Revolving Loans in accordance with the
provisions hereof.
(b) Each Revolving Loan shall, at the option of Borrower,
be made or continued as, or converted into, part of one or more
Borrowings that shall consist entirely of Base Rate Advances or
Eurodollar Advances. The aggregate principal amount of each Borrowing
of Revolving Loans shall in the case of Eurodollar Advances be not
less than $1,000,000 or a greater integral multiple of $500,000, and
in the case of Base Rate Advances shall be not less than $500,000 or a
greater integral multiple of $100,000, or in such lesser Loan amounts
as shall then equal the unused amount of the Revolving Loan
Commitment. At no time shall the number of Borrowings made as
Eurodollar Advances then outstanding under this Article II exceed six;
provided that, for the purpose of determining the number of Borrowings
outstanding and the minimum amount for Borrowings resulting from
continuations, all Borrowings of Base Rate Advances under the
Revolving Loan shall be considered as one Borrowing. The parties
hereto agree that (i) the aggregate principal balance of the Revolving
Loans of the Lender as a group shall not exceed the Revolving Loan
Commitment, and (ii) Lender shall not be obligated to make Revolving
Loans in excess of its Revolving Loan Commitment.
(c) The proceeds of the Revolving Loans shall be used
solely for the following purposes:
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(i) To pay in full and terminate all credit
facilities due First Union and to obtain from First Union a
termination of all Liens held by First Union;
(ii) To finance Permitted Acquisitions as
described herein;
(iii) For working capital and for other general
corporate purposes, including capital expenditures of the
Consolidated Companies;
(iv) To pay all transaction fees and expenses
incurred in connection with this facility including Closing
Fees and costs and expenses, including attorneys' fees, of the
Lender, and, with the consent of the Lender, costs and
expenses, including attorneys' fees, of the Borrower; and
(v) To pay other fees to the Lender or Lender
from time to time under this Agreement including Availability
Fees.
SECTION 2.2 NOTES; REPAYMENT OF PRINCIPAL.
(a) Borrower's obligations to pay the principal of, and
interest on, the Revolving Loans to the Lender shall be evidenced by
the records of the Lender and by the Revolving Credit Note payable to
the Lender completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Revolving
Loans shall be due and payable in full on the Maturity Date
SECTION 2.3 PAYMENT OF INTEREST.
(a) Borrower agrees to pay interest in respect of all
unpaid principal amounts of the Revolving Loans from the respective
dates such principal amounts were advanced to maturity (whether by
acceleration, notice of prepayment or otherwise) at rates per annum
(computed on the basis of a 360 day year for the actual number of days
elapsed) equal to the applicable rates indicated below:
(i) For Base Rate Advances -- The Base Advance
Rate in effect from time to time; and
(ii) For Eurodollar Advances -- The relevant
LIBOR Advance Rate.
(b) Interest on each Loan shall accrue from and including
the date of such Loan to but excluding the date of any repayment
thereof; provided that, if a Loan is repaid on the same day made, one
day's interest shall be paid on such Loan. Interest on all
outstanding Base Rate Advances shall be payable quarterly in arrears
on the last calendar day of each fiscal quarter of Borrower in each
year. Interest on all outstanding Eurodollar Advances shall be
payable on the last day of each Interest Period applicable thereto,
and, in the case of Eurodollar Advances having an Interest Period in
excess of three months, on each day which occurs every three months
after the initial date of such Interest Period. Interest on all Loans
shall be payable on any conversion of any Advances comprising such
Loans into Advances of another Type, at the Final Maturity Date and,
after the Final Maturity Date, on demand.
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SECTION 2.4 EXTENSION OF MATURITY DATE. At the written request
of the Borrower, to be made no later than sixty days prior to November 9, 1995,
the Lender may in its sole and absolute discretion extend the Maturity Date by
an additional one year period.
SECTION 2.5 REDUCTION OF REVOLVING LOAN COMMITMENTS.
(a) The Borrower prior to the Maturity Date shall have
the right in the manner set forth below to reduce (but not increase)
the Revolving Loan Commitment.
(b) The Borrower, if it desires to reduce the Revolving
Loan Commitment, must (i) give thirty Business Day's notice to the
Lender setting forth the amount which the Borrower desires to have as
the Revolving Loan Commitment, which said amount may not be less than
the principal amount then outstanding on the Revolving Loans, and
(ii) pay to the Lender within said thirty day period any Availability
Fee due at the time of said reduction on that portion of the
Revolving Loan Commitment which is being so reduced. Said reduction
shall be effective at the end of said thirty Business Day period and
upon the payment of said Availability Fee.
(c) Any reduction must be in the minimum amount of
$500,000 or a greater integral multiple of $500,000.
ARTICLE III
THIS ARTICLE IS NOT APPLICABLE.
ARTICLE IV
GENERAL LOAN TERMS
SECTION 4.1 FUNDING NOTICES.
(a) Whenever Borrower desires to make a Borrowing, it
shall give the Lender prior written notice (or telephonic notice
promptly confirmed in writing) of such Borrowing (a "Notice of
Borrowing"), such Notice of Borrowing to be given prior to 11:00 A.M.
(local time for the Lender) at its Lending Office (i) one Business Day
prior to the requested date of such Borrowing in the case of Base Rate
Advances, and (ii) two Business Days prior to the requested date of
such Borrowing in the case of Eurodollar Advances. Notices received
after 11:00 A.M. shall be deemed received on the next Business Day.
Each Notice of Borrowing shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing, the date of Borrowing
(which shall be a Business Day), and whether the Borrowing is to
consist of Base Rate Advances or Eurodollar Advances and (in the case
of Eurodollar Advances) the Interest Period to be applicable thereto.
(b) Whenever Borrower desires to convert one or more
Borrowings of one Type into one or more Borrowings of another Type, or
to continue outstanding a Borrowing consisting of Eurodollar Advances
for a new Interest Period, it shall give Lender prior written notice
(or telephonic notice promptly confirmed in writing) of each such
Borrowing to be converted or continued, such Notice of
Conversion/Continuation to be given prior to 11:00 A.M. (local time
for the Lender) at its Lending Office (i) one Business Day prior to
the requested date of such Borrowing in the case of the continuation
into a Base Rate Advance,
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and (ii) two Business Days prior to the requested date of such
Borrowing in the case of a continuation of or conversion into
Eurodollar Advances. Notices received after 11:00 A.M. shall be
deemed received on the next Business Day. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing to be converted or
continued, the date of such conversion or continuation (which shall be
a Business Day), whether the Borrowing is being converted into or
continued as Eurodollar Advances and (in the case of Eurodollar
Advances) the Interest Period applicable thereto. If, upon the
expiration of any Interest Period in respect of any Borrowing,
Borrower shall have failed to deliver the Notice of
Conversion/Continuation, Borrower shall be deemed to have elected to
continue such Borrowing as a Eurodollar Advance for the same Interest
Period then applicable to said Borrowing. No conversion of any
Borrowing of Eurodollar Advances shall be permitted except on the last
day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to
confirm in writing any telephonic notice, the Lender may act without
liability upon the basis of telephonic notice believed by the Lender
in good faith to be from Borrower prior to receipt of written
confirmation. In each such case, Borrower hereby waives the right to
dispute the Lender's record of the terms of such telephonic notice.
SECTION 4.2 DISBURSEMENT OF FUNDS. The Lender will make
available the amount of such Borrowing in immediately available funds at the
Lending Office of the Lender by crediting such amounts to Borrower's demand
deposit account maintained with the Lender by the close of business on such
Business Day.
SECTION 4.3 INTEREST: DEFAULT, PAYMENT AND DETERMINATION.
Overdue principal and, to the extent not prohibited by applicable law, overdue
interest, in respect of the Revolving Loans, and all other overdue amounts
owing hereunder, shall bear interest from each date that such amounts are
overdue, at the higher of the following rates:
(a) Base Advance Rate plus an additional two percent
(2.0%) per annum; or
(b) The interest rate otherwise applicable to said amount
plus an additional two percent (2.0%) per annum.
SECTION 4.4 INTEREST PERIODS.
(a) In connection with the making or continuation of, or
conversion into, each Eurodollar Advance, Borrower shall select an
Interest Period to be applicable to such Eurodollar Advance, which
Interest Period shall be either a 1, 2, 3, 6 or 12 month period;
provided that:
(i) The initial Interest Period for any Borrowing
of Eurodollar Advances shall commence on the date of such
Borrowing (including the date of any conversion from a
Borrowing consisting of Advances of another Type) and each
Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day;
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(iii) Any Interest Period in respect of Eurodollar
Advances which begins on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period shall, subject to part (iv) below,
expire on the last Business Day of such calendar month; and
(iv) No Interest Period shall extend beyond the
Maturity Date.
SECTION 4.5 FEES.
(a) Borrower shall pay to the Lender the Availability Fee
for the period commencing on the Closing Date to and including the
Maturity Date, such Fee being payable (i) quarterly in arrears on the
last calendar day of each fiscal quarter of Borrower and on the
Maturity Date, and (ii) at the time of any reduction in the Revolving
Loan Commitment under Section 2.5 hereof on the amount of said
reduction.
(b) Borrower shall pay to Lender on or prior to Closing
Date, the balance of the Closing Fees.
SECTION 4.6 VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Borrower may, at its option, prepay Borrowings
consisting of Base Rate Advances at any time in whole, or from time to
time in part, in amounts aggregating $100,000 or any greater integral
multiple of $50,000, by paying the principal amount to be prepaid
together with interest accrued and unpaid thereon to the date of
prepayment. Those Borrowings consisting of Eurodollar Advances may be
prepaid, at Borrower's option, in whole, or from time to time in part,
in aggregating $1,000,000 or any greater integral multiple of
$500,000, by paying the principal amount to be prepaid, together with
interest accrued and unpaid thereon to the date of prepayment,
provided however, prepayment of Eurodollar Advances may only be made
on the last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with Section 4.6(c)
below.
(b) Borrower shall give written notice (or telephonic
notice confirmed in writing) to the Lender of any intended prepayment
of the Revolving Loans (i) not less than one Business Day prior to any
prepayment of Base Rate Advances, and (ii) not less than three
Business Days prior to any prepayment of Eurodollar Advances. Such
notice, once given, shall be irrevocable.
(c) Borrower, when providing notice of prepayment
pursuant to Section 4.6(b) may designate the Types of Advances and the
specific Borrowing or Borrowings which are to be prepaid, provided
that (i) if any prepayment of Eurodollar Advances made pursuant to a
single Borrowing of the Revolving Loans shall reduce the outstanding
Advances made pursuant to such Borrowing to an amount less than
$1,000,000, such Borrowing shall immediately be converted into Base
Rate Advances, and (ii) each prepayment made pursuant to a single
Borrowing shall be applied pro rata among the Loans comprising such
Borrowing.
(d) In regard to any Revolving Loan, nothing contained
herein shall preclude the Borrower from prepaying said Loan and
thereafter and prior to the Maturity Date from obtaining any
additional or future Advances as a Revolving Loan under Section 2.1
above up to the Revolving Loan Commitment.
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SECTION 4.7 PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other
than the payments specified in clause (b) below, shall be made without
notice, defense, set-off or counterclaim to the Lender, not later than
11:00 A.M. (local time for the Lender) on the date when due and shall
be made in Dollars in immediately available funds to the Lender at the
Lender's Lending Office.
(b) (i) All such payments shall be made free and
clear of and without deduction or withholding for any Taxes in respect
of this Agreement, the Notes or other Credit Documents, or any
payments of principal, interest, fees or other amounts payable
hereunder or thereunder (but excluding any Taxes imposed on the
overall net income of the Lender pursuant to the laws of any
jurisdiction). If any Taxes are so levied or imposed, Borrower agrees
(A) to pay the full amount of such Taxes, and such additional amounts
as may be necessary so that every net payment of all amounts due
hereunder and under the Notes and other Credit Documents, after
withholding or deduction for or on account of any such Taxes
(including additional sums payable under this Section 4.7), will not
be less than the full amount provided for herein had no such deduction
or withholding been required, (B) to make such withholding or
deduction, and (C) to pay the full amount deducted to the relevant
authority in accordance with applicable law. Borrower will furnish to
the Lender within thirty days after the date the payment of any Taxes
is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by Borrower. Borrower will indemnify and hold
harmless the Lender and reimburse the Lender upon written request for
the amount of any such Taxes (exclusive of any taxes imposed on the
overall net income of the Lender) so levied or imposed and paid by the
Lender and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes
were correctly or illegally asserted. A certificate as to the amount
of such payment by the Lender, absent manifest error, shall be final,
conclusive and binding for all purposes.
(c) Subject to Section 4.4(a)(ii), whenever any payment
to be made hereunder or under any Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be payable at the
applicable rate during such extension.
(d) All computations of interest and fees shall be made
on the basis of a year of 360 days for the actual number of days
elapsed (including the first day but excluding the last day) occurring
in the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed)
SECTION 4.8 LIBOR RATE NOT ASCERTAINABLE, ETC. In the event that
the Lender shall have determined (which determination shall be made in good
faith and, absent manifest error, shall be final, conclusive and binding upon
all parties) that on any date for determining LIBOR for any Interest Period, by
reason of any changes arising after the date of this Agreement affecting the
London interbank market or the Lender's position in such markets, adequate and
fair means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of LIBOR then, and in any such event, the
Lender shall forthwith give notice (by telephone confirmed in writing) to
Borrower and to the Lender of such determination and a summary of the basis for
such determination. Until the Lender notifies Borrower that the circumstances
giving rise to the suspension described herein no longer exist (which Lender
agrees to give as soon as conditions warrant), the obligations of the Lender to
make or permit portions of the Revolving Loans to remain
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outstanding past the last day of the then current Interest Periods as
Eurodollar Advances, shall be suspended, and such affected Advances shall bear
the same interest as Base Rate Advances.
SECTION 4.9 ILLEGALITY.
(a) In the event that the Lender shall have determined
(which determination shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all parties) at any
time that the making or continuance of any Eurodollar Advance has
become unlawful by compliance by the Lender in good faith with any
applicable law, governmental rule, regulation, guideline or order
(whether or not having the force of law and whether or not failure to
comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to
Borrower of such determination and a summary of the basis for such
determination.
(b) Upon the giving of the notice to Borrower referred to
in subsection (a) above, (i) Borrower's right to request and the
Lender's obligation to make Eurodollar Advances, shall be immediately
suspended, and the Lender shall make an Advance as part of the
requested Borrowing of Eurodollar Advances as a Base Rate Advance,
which Base Rate Advance shall, for all other purposes, be considered
part of such Borrowing, and (ii) if the affected Eurodollar Advance or
Advances are then outstanding, Borrower shall immediately, or if
permitted by applicable law, no later than the date permitted thereby,
upon at least one Business Day's written notice to the Lender, convert
each such Advance into an Advance or Advances of a different Type with
an Interest Period ending on the date on which the Interest Period
applicable to the affected Eurodollar Advances expires.
SECTION 4.10 INCREASED COSTS.
(a) If, by reason of after the date hereof, (x) the
introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements) in or
in the interpretation of any law or regulation, or (y) the compliance
with any guideline or request from any central bank or other
governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not
having the force of law):
(i) the Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with respect
to its Eurodollar Advances or its obligation to make
Eurodollar Advances, or the basis of taxation of payments to
the Lender of the principal of or interest on its Eurodollar
Advances or its obligation to make Eurodollar Advances shall
have changed (except for changes in the tax on the net income
or profits of the Lender or its applicable Lending Office
imposed by any jurisdiction); or
(ii) any reserve (including, without limitation,
any imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended
by, the Lender's applicable Lending Office shall be imposed or
deemed applicable or any other condition affecting its
Eurodollar Advances or its obligation to make Eurodollar
Advances shall be imposed on the Lender or its applicable
Lending Office or the London interbank market or the United
States secondary certificate of deposit market;
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and as a result thereof there shall be any increase in the cost to the
Lender of agreeing to make or making, funding or maintaining
Eurodollar Advances (except to the extent already included in the
determination of the applicable LIBOR Advance Rate for Eurodollar
Advances), or there shall be a reduction in the amount received or
receivable by the Lender or its applicable Lending Office, then
Borrower shall from time to time (subject, in the case of certain
Taxes, to the applicable provisions of Section 4.7(b)), upon written
notice from and demand by the Lender on Borrower pay to the Lender
within five Business Days after the date of such notice and demand,
additional amounts sufficient to indemnify the Lender against such
increased cost. A certificate as to the amount of such increased
cost, submitted to Borrower and the Lender by the Lender in good faith
and accompanied by a statement prepared by the Lender describing in
reasonable detail the basis for and calculation of such increased
cost, shall, except for manifest error, be final, conclusive and
binding for all purposes.
(b) If the Lender, because of the circumstances described
in clauses (x) or (y) in Section 4.10(a) or any other circumstances
beyond the Lender's reasonable control arising after the date of this
Agreement affecting the Lender or the London interbank market or the
Lender's position in such markets, the LIBOR Advance Rate, as
determined by the Lender, will not adequately and fairly reflect the
cost to the Lender of funding its Eurodollar Advances, then, and in
any such event:
(i) The Lender shall forthwith give notice (by
telephone confirmed in writing) to Borrower;
(ii) Borrower's right to request and the Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest
Periods as Eurodollar Advances, shall be immediately
suspended; and
(iii) The Lender shall make a Loan as part of any
requested Borrowing of Eurodollar Advances, as a Base Rate
Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
SECTION 4.11 This Section is not applicable.
SECTION 4.12 FUNDING LOSSES. Borrower shall compensate the
Lender, upon its written request to Borrower (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive
and binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by the Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances, in
either case to the extent not recovered by the Lender in connection with the
reemployment of such funds and including loss of anticipated profits), which
the Lender may sustain: (i) if for any reason (other than a default by the
Lender) a borrowing of, or conversion to or continuation of, Eurodollar
Advances to Borrower does not occur on the date specified therefor in a Notice
of Borrowing or Notice of Conversion (whether or not withdrawn), (ii) if any
repayment (including mandatory prepayments and any conversions pursuant to
Section 4.9(b)) of any Eurodollar Advances to Borrower occurs on a date which
is not the last day of an Interest Period applicable thereto, or (iii), if, for
any reason, Borrower defaults in its obligation to repay its Eurodollar
Advances when required by the terms of this Agreement.
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SECTION 4.13 ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR
ADVANCES. Calculation of all amounts payable to a Lender under this Article IV
shall be made as though that Lender had actually funded its relevant Eurodollar
Advances through the purchase of deposits in the relevant market bearing
interest at the rate applicable to such Eurodollar Advances in an amount equal
to the amount of the Eurodollar Advances and having a maturity comparable to
the relevant Interest Period and, in the case of Eurodollar Advances, through
the transfer of such Eurodollar Advances from an offshore office of that Lender
to a domestic office of that Lender in the United States of America; provided,
however, that the Lender may fund each of its Eurodollar Advances in any manner
it sees fit and the foregoing assumption shall be used only for calculation of
amounts payable under this Article IV.
SECTION 4.14 This Section is not applicable.
SECTION 4.15 This Section is not applicable.
SECTION 4.16 CAPITAL ADEQUACY. Without limiting any other
provision of this Agreement, in the event that the Lender shall have determined
that the adoption of any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy not currently in
effect or fully applicable as of the Closing Date, or any change therein or in
the interpretation or application thereof after the Closing Date, or compliance
by the Lender with any request or directive regarding capital adequacy not
currently in effect or fully applicable as of the Closing Date (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from a central bank or governmental authority or body having
jurisdiction, does or shall have the effect of reducing the rate of return on
the Lender's capital as a consequence of its obligations hereunder to a level
below that which the Lender could have achieved but for such law, treaty, rule,
regulation, guideline or order, or such change or compliance (taking into
consideration the Lender's policies with respect to capital adequacy by an
amount deemed by the Lender to be material, then within ten Business Days after
written notice and demand by the Lender (with copies thereof to the Lender),
Borrower shall from time to time pay to the Lender additional amounts sufficient
to compensate the Lender for such reduction (but, in the case of outstanding
Base Rate Advances, without duplication of any amounts already recovered by the
Lender by reason of an adjustment in the applicable Base Rate). Each certificate
as to the amount payable under this Section 4.16 (which certificate shall set
forth the basis for requesting such amounts in reasonable detail), submitted to
Borrower by the Lender in good faith, shall, absent manifest error, be final,
conclusive and binding for all purposes.
SECTION 4.17 BENEFITS TO GUARANTORS. In consideration for the
execution and delivery by the Guarantors of their respective Guaranty Agreement,
Borrower agrees to make the benefit of extensions of credit hereunder available
to the Guarantors.
SECTION 4.18 LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) The Lender shall make written demand on Borrower for
indemnification or compensation pursuant to Section 4.7 no later than
ninety days after the earlier of (i) the date on which the Lender
makes payment of such Taxes, and (ii) the date on which the relevant
taxing authority or other governmental authority makes written demand
upon the Lender for payment of such Taxes.
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(b) The Lender shall make written demand on Borrower for
indemnification or compensation pursuant to Sections 4.12 and 4.13 no
later than ninety days after the event giving rise to the claim for
indemnification or compensation occurs.
(c) The Lender shall make written demand on Borrower for
indemnification or compensation pursuant to Sections 4.10 and 4.16 no
later than ninety days after the Lender or Lender receives actual
notice or obtains actual knowledge of the promulgation of a law, rule,
order or interpretation or occurrence of another event giving rise to
a claim pursuant to such sections.
(d) In the event that the Lender fails to give Borrower
notice within the time limitations prescribed in (a) or (b) above,
Borrower shall not have any obligation to pay such claim for
compensation or indemnification. In the event that the Lender fail to
give Borrower notice within the time limitation prescribed in (c)
above, Borrower shall not have any obligation to pay any amount with
respect to claims accruing prior to the ninetieth day preceding such
written demand.
SECTION 4.19 CHANGE FROM ONE TYPE OF BORROWING TO ANOTHER.
Subject to the limitations set forth in this Agreement, the Borrower shall have
the right from time to time to change from one Type of Borrowing to another by
giving appropriate Notice of Conversion/Continuation in the manner set forth in
Section 4.1.
ARTICLE V.
CONDITIONS TO BORROWINGS
The obligations of the Lender to make Advances to Borrower hereunder
and to accept a conversation of one Type of Loan into another is subject to the
satisfaction of the following conditions:
SECTION 5.1 CONDITIONS PRECEDENT TO INITIAL LOANS. At the time
of the making of the initial Loans hereunder on the Closing Date, all
obligations of Borrower hereunder incurred prior to the initial Loans
(including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Lender and any Closing Fees and
expenses payable to the Lender as previously agreed with Borrower), shall have
been paid in full, and the Lender shall have received the following, in form
and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Revolving Note evidencing the
Revolving Loan Commitments;
(c) The duly executed Guaranty Agreement;
(d) The duly executed Security Documents;
(e) Duly executed Certificate of Borrower in
substantially the form of Exhibit G attached hereto and appropriately
completed;
(f) Duly executed Certificates of the Secretary or
Assistant Secretary of each of the Credit Parties attaching and
certifying copies of the resolutions of the boards of directors of the
Credit Parties, authorizing as applicable the execution, delivery and
performance of the Credit Documents;
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(g) Duly executed Certificates of the Secretary or an
Assistant Secretary of each of the Credit Parties certifying (i) the
name, title and true signature of each officer of such entities
executing the Credit Documents, and (ii) the bylaws or comparable
governing documents of such entities;
(h) Certified copies of the certificate or articles of
incorporation of each Credit Party certified by the Secretary of State
or the Secretary or Assistant Secretary of such Credit Party, together
with certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of incorporation or
organization of such Credit Party;
(i) Copies of all documents and instruments, including
all consents, authorizations and filings, required or advisable under
any Requirement of Law or by any material Contractual Obligation of
the Credit Parties, in connection with the execution, delivery,
performance, validity and enforceability of the Credit Documents and
the other documents to be executed and delivered hereunder, and such
consents, authorizations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired;
(j) Certified copies of the Intercompany Credit
Documents, to the extent that they exist;
(k) The duly executed copy of the Contribution Agreement
by the Borrower and the Guarantors, in the form attached hereto as
Exhibit I.
(l) Certified copies of uniform commercial code searches,
tax lien searches, judgment lien searches, and other searches as the
Lender may require, on the Consolidated Companies, reflecting no Liens
against the Consolidated Companies, other than those to be paid in
full as result of the full payoff to First Union and Permitted Liens;
(m) Certified copies of indentures, credit agreements,
leases, capital leases, instruments, and other documents evidencing or
securing Indebtedness of any Consolidated Company described on
Schedule 8.1(b), in any single case greater than $100,000;
(n) Certificates, reports and other information as the
Lender may reasonably request from any Consolidated Company in order
to satisfy the Lender as to the absence of any material liabilities or
obligations arising from matters relating to employees of the
Consolidated Companies, including employee relations, collective
bargaining agreements, Plans, and other compensation and employee
benefit plans;
(o) Certificates, reports, environmental audits and
investigations, and other information as the Lender may reasonably
request from any Consolidated Company in order to satisfy the Lender
as to the absence of any material liabilities or obligations arising
from environmental and employee health and safety exposures to which
the Consolidated Companies may be subject, and the plans of the
Consolidated Companies with respect thereto;
(p) Certificates, reports and other information as the
Lender may reasonably request from any Consolidated Company in order
to satisfy the Lender as to the absence of any material liabilities or
obligations arising from litigation (including without limitation,
products liability and patent infringement claims) pending or
threatened against the Consolidated Companies;
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(q) A summary, set forth in format and detail reasonably
acceptable to the Lender, of the types and amounts of insurance
(property and liability) maintained by the Consolidated Companies;
(r) The duly executed favorable opinion of Cobb, Cole &
Bell, counsel to the Credit Parties, substantially in the form of
Exhibit H addressed to the Lender and each of the Lender;
(s) Financial statement of the Borrower, audited on a
consolidated basis for the fiscal year ended on December 31, 1993;
(t) Financial statement of the Borrower, internally
prepared and unaudited, on a consolidated basis for the nine month
period ending September 30, 1994;
(u) The duly executed Consents by Lessor; and
(v) A fully executed pay off letter from First Union to
the Lender confirming the amounts due First Union on its credit
facilities, further stating that upon the receipt of said payment,
First Union will terminate said facility and immediately execute all
termination statements regarding any Liens held by First Union, with
the execution by First Union of said termination statements
immediately after its receipt of payment; and the full payment to
First Union of its credit facilities by the Borrower either with its
own funds or using Advances under this Facility.
In addition to the foregoing, the following conditions shall have been
satisfied or shall exist, all to the reasonable satisfaction of the Lender, as
of the time the initial Loans are made hereunder:
(w) The Loans to be made on the Closing Date and the use
of proceeds thereof shall not contravene, violate or conflict with, or
involve the Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other governmental
authority;
(x) All corporate proceedings and all other legal matters
in connection with the authorization, legality, validity and
enforceability of the Credit Documents shall be reasonably
satisfactory in form and substance to the Lender;
(y) The status of all pending and threatened litigation
(including products liability and patent claims) which might result in
a Materially Adverse Effect, including a description of any damages
sought and the claims constituting the basis therefor, shall have been
reported in writing to the Lender, and the Lender shall be satisfied
with such status;
SECTION 5.2 CONDITIONS TO ALL LOANS. At the time of the
making of all Loans (before as well as after giving effect to such
Loans and to the proposed use of the proceeds thereof) and the
conversion of one Type of Loan into another, the following conditions
shall have been satisfied or shall exist:
(a) There shall then exist no Default or Event of Default;
(b) All representations and warranties by Borrower
contained herein shall be true and correct in all material respects
with the same effect as though such representations and warranties had
been made on and as of the date of such Loans (except to the extent
that such
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representations and warranties expressly relate to an earlier date or
are affected by transactions permitted under this Agreement);
(c) Since the date of the most recent financial
statements of the Borrower described in Section 6.3 hereof, there
shall have been no change which has had or could reasonably be
expected to have a Materially Adverse Effect;
(d) There shall be no action or proceeding instituted or
pending before any court or other governmental authority or, to the
knowledge of Borrower, threatened (i) which reasonably could be
expected to have a Materially Adverse Effect, or (ii) seeking to
prohibit or restrict one or more Credit Party's ownership or operation
of any portion of its business or assets, or to compel one or more
Credit Party to dispose of or hold separate all or any portion of its
businesses or assets , where said action if successful would have a
Materially Adverse Effect;
(e) The Loans to be made and the use of proceeds thereof
shall not contravene, violate or conflict with, or involve the Lender
or the Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other governmental
authority applicable to Borrower; and
(f) The Lender shall have received such other documents
or legal opinions as the Lender may reasonably request, all in form
and substance reasonably satisfactory to the Lender.
SECTION 5.3 CERTIFICATION FOR EACH BORROWING. Each Notice of
Borrowing, Notice of Conversion/Continuation, or any other request for a
Borrowing, and the acceptance by Borrower of the proceeds thereof shall
constitute a representation and warranty by Borrower, as of the date of said
Notice, draw request or acceptance, as the case may be, that the applicable
conditions specified in Sections 5.1 and 5.2 have been satisfied or are true
and correct, as the case may be.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lender that:
SECTION 6.1 ORGANIZATION AND QUALIFICATION. Borrower is a
corporation duly organized and existing in good standing under the laws of the
State of Florida. Each Subsidiary of Borrower is a corporation duly organized
and existing under the laws of the jurisdiction of its incorporation. Borrower
and each of its Subsidiaries are duly qualified to do business as a foreign
corporation and are in good standing in each jurisdiction in which the
character of their properties or the nature of their business makes such
qualification necessary, except for such jurisdictions in which a failure to
qualify to do business would not have a Materially Adverse Effect. Borrower
and each of its Subsidiaries have the corporate power to own their respective
properties and to carry on their respective businesses as now being conducted.
The jurisdiction of incorporation or organization, and the ownership of all
issued and outstanding capital stock, for Borrower and each Subsidiary as of
the date of this Agreement is accurately described on Schedule 6.1.
SECTION 6.2 CORPORATE AUTHORITY. The execution and delivery by
the Credit Parties of and the performance by Credit Parties of their
obligations under the Credit Documents have been duly authorized by all
requisite corporate action and all requisite shareholder action, if any, on the
part of Credit Parties and do not and will not (i) violate any provision of any
law, rule or regulation, any judgment, order or ruling of any
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court or governmental agency, the organizational papers or bylaws of Credit
Parties, or any indenture, agreement or other instrument to which Credit
Parties are a party or by which Credit Parties or any of their properties is
bound, or (ii) be in conflict with, result in a breach of, or constitute with
notice or lapse of time or both a default under any such indenture, agreement
or other instrument.
SECTION 6.3 BORROWER FINANCIAL STATEMENTS. Borrower has
furnished Lender with the following financial statement, identified by the
Treasurer or Chief Financial Officer of Borrower: consolidated balance sheets
and consolidated statements of income, stockholders' equity and cash flow as of
and for the fiscal years ended on the last day in December, 1992, and 1993
certified by Ernst and Young, and the nine month unaudited consolidated balance
sheets and consolidated statements of income, stockholder equity and cash flow
as and for the nine months ended on September 30, 1994. Such financial
statements (including any related schedules and notes) are true and correct in
all material respects (subject, as to interim statements, to changes resulting
from audits and year end adjustments), have been prepared in accordance with
GAAP consistently applied throughout the period or periods in question and
show, in the case of audited statements, all liabilities, direct or contingent,
of Borrower and its Subsidiaries, required to be shown in accordance with GAAP
consistently applied throughout the period or periods in question and fairly
present the consolidated financial position and the consolidated results of
operations of Borrower and its Subsidiaries for the periods indicated therein.
There has been no material adverse change in the business, condition or
operations, financial or otherwise, of Borrower and its Subsidiaries since
September 30, 1994.
SECTION 6.4 TAX RETURNS. Except as set forth on Schedule 6.4
hereto, each of Borrower and its Subsidiaries has filed all federal, state and
other income tax returns which, to the best knowledge of Borrower and its
Subsidiaries, are required to have been filed, and each has paid all taxes as
shown on said returns and on all assessments received by it to the extent that
such taxes have become due or except such as are being contested in good faith
by appropriate proceedings for which adequate reserves have been established in
accordance with GAAP.
SECTION 6.5 ACTIONS PENDING. Except as disclosed on Schedule 6.5
hereto, there is no action, suit, investigation or proceeding pending or, to
the knowledge of Borrower, threatened against or affecting Borrower or any of
its Subsidiaries or any of their properties or rights, by or before any court,
arbitrator or administrative or governmental body, which might result in any
Materially Adverse Effect.
SECTION 6.6 REPRESENTATIONS; NO DEFAULTS. At the time of each
Borrowing, there shall exist no Default or Event of Default.
SECTION 6.7 TITLE TO PROPERTIES. Each of Borrower and its
Subsidiaries has (i) good and marketable fee simple title to its respective
real properties (other than real properties which it leases from others),
including all such real properties reflected in the consolidated balance sheet
of Borrower and its Subsidiaries herein above described (other than real
properties disposed of in the ordinary course of business), subject to no Lien
of any kind except as set forth on Schedule 6.7 hereto or as permitted by
Section 8.2, and (ii) good title to all of its other respective properties and
assets (other than properties and assets which it leases from others),
including the other material properties and assets reflected in the
consolidated balance sheet of Borrower and its subsidiaries hereinabove
described (other than properties and assets disposed of in the ordinary course
of business or sold in accordance with Section 8.3 below), subject to no Lien
of any kind except as set forth on Schedule 6.7, hereto or as permitted by
Section 8.2. Each of Borrower and its Subsidiaries enjoys peaceful and
undisturbed possession under all leases necessary in any material respect for
the operation of its respective properties and assets, none of which contains
any unusual or burdensome provisions which might materially affect or impair
the operation of such properties and assets, and all such leases are valid and
subsisting and in full force and effect. To the extent any Consolidated
Company is required by applicable law to segregate or place in escrow any
premiums or other similar payments, those amounts shall be kept in escrow and
shall not be considered to be property of the Consolidated Company hereunder.
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SECTION 6.8 ENFORCEABILITY OF AGREEMENT. This Agreement is the
legal, valid and binding agreement of Borrower enforceable against Borrower in
accordance with its terms, and the Note, and all other Credit Documents, when
executed and delivered, will be similarly legal, valid, binding and enforceable
as against all applicable Credit Parties, except as the enforceability of the
Note and other Credit Documents may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditor's rights and
remedies in general and by general principles of equity, whether considered in
a proceeding at law or in equity.
SECTION 6.9 CONSENT. No Consent, permission, authorization,
order or license of any governmental authority or Person is necessary in
connection with the execution, delivery, performance or enforcement of the
Credit Documents.
SECTION 6.10 USE OF PROCEEDS; FEDERAL RESERVE REGULATIONS. The
proceeds of the Note will be used solely for the purposes specified in Section
2.1(c) and 4.2(d) and none of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin security" or
"margin stock" or for the purpose of reducing or retiring any indebtedness that
originally was incurred to purchase or carry a "margin security" or "margin
stock" or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of the regulations of the Board of
Governors of the Federal Reserve System.
SECTION 6.11 ERISA.
(a) Identification of Certain Plans. Schedule 6.11
hereto sets forth all Plans of Borrower and its Subsidiaries in effect
on the date of this Agreement;
(b) Compliance. Each Plan is being maintained, by its
terms and in operation, in accordance with all applicable laws, except
such noncompliance (when taken as a whole) that will not have a
Materially Adverse Effect;
(c) Liabilities. Neither the Borrower nor any Subsidiary
is currently or will become subject to any liability (including
withdrawal liability), tax or penalty whatsoever to any person
whomsoever with respect to any Plan including, but not limited to, any
tax, penalty or liability arising under Title I or Title IV of ERISA
or Chapter 43 of the Code, except such liabilities (when taken as a
whole) as will not have a Materially Adverse Effect; and
(d) Funding. The Borrower and each ERISA Affiliate have
made full and timely payment of all amounts (i) required to be
contributed under the terms of each Plan and applicable law and (ii)
required to be paid as expenses of each Plan, except where such
non-payment would not have a Material Adverse Effect. As of the date
of this Agreement, no Plan has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA) except as
disclosed on Schedule 6.11. No Plan is subject to a waiver or
extension of the minimum funding requirements under ERISA or the Code,
and no request for such waiver or extension is pending.
SECTION 6.12 SUBSIDIARIES. Schedule 6.1 hereto sets forth each
Subsidiary of the Borrower as of the date of this Agreement, each of which is a
Material Subsidiary. All the outstanding shares of Capital Stock of each such
Subsidiary have been validly issued and are fully paid and nonassessable and
all such outstanding shares, except as noted on such Schedule 6.1 hereto, are
owned by Borrower or a Wholly Owned Subsidiary of Borrower free of any Lien
(other than those in favor of the Lender).
SECTION 6.13 OUTSTANDING INDEBTEDNESS. Except as set forth on
Schedule 6.13 hereof, as of the Closing Date and after giving effect to the
transactions contemplated by this Agreement, no Credit Party has
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outstanding any Indebtedness in an amount exceeding $250,000 except as
permitted by Section 8.1 and as of the Closing Date there exists no default
under the provisions of any instrument evidencing such Indebtedness or of any
agreement relating thereto except as noted on Schedule 6.13.
SECTION 6.14 CONFLICTING AGREEMENTS. Except as set forth on
Schedule 6.14 hereof, none of the Borrower or any of its Subsidiaries is a
party to any contract or agreement or other burdensome restrictions or subject
to any charter or other corporate restriction which could have a Materially
Adverse Effect. Assuming the consummation of the transactions contemplated by
this Agreement, neither the execution or delivery of this Agreement or the
Credit Documents, nor fulfillment of or compliance with the terms and
provisions hereof and thereof, will except as set forth in Schedule 6.14
hereof, conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in any violation of, or
result in the creation of any Lien upon any of the properties or assets of
Borrower or any of its Subsidiaries (other than those in favor of the Lender)
pursuant to, the charter or By-Laws of Borrower or any of its Subsidiaries, any
award of any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which Borrower or any of its Subsidiaries is subject, and none of
the Borrower nor any of its Subsidiaries is a party to, or otherwise subject to
any provision contained in, any instrument evidencing Indebtedness of Borrower
or any of its Subsidiaries in an amount exceeding $250,000, any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Indebtedness of the type to be evidenced by the Note or contains dividend
or redemption limitations on Common Stock of Borrower, except for this
Agreement and those matters listed on Schedule 6.14 attached hereto.
SECTION 6.15 POLLUTION AND OTHER REGULATIONS.
(a) Except as set forth on Schedule 6.15(a), each of the
Borrower and its Subsidiaries has to the best of its knowledge
complied in all material respects with all applicable Environmental
Laws, including without limitation, compliance with permits, licenses,
standards, schedules and timetables issued pursuant to Environmental
Laws, and is not in violation of, and does not presently have
outstanding any liability under, has not been notified that it is or
may be liable under and does not have knowledge of any material
liability or potential material liability (including any liability
relating to matters set forth on Schedule 6.15(a)), under any
applicable Environmental Law, including without limitation, the
Resource Conservation and Recovery Act of 1976, as amended ("RCRA"),
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("CERCLA"), the Federal Water Pollution
Control Act, as amended ("FWPCA"), the Federal Clean Air Act, as
amended ("FCAA"), and the Toxic Substance Control Act ("TSCA"), which
violation, liability or potential liability could reasonably be
expected to have a Materially Adverse Effect.
(b) Except as set forth on Schedule 6.15(b), as of the
date of this Agreement, neither the Borrower nor any of its
Subsidiaries has received a written request for information under
CERCLA, any other Environmental Laws or any comparable state law, or
any public health or safety or welfare law or written notice that any
such entity has been identified as a potential responsible party under
CERCLA, and other Environmental Laws, or any comparable state law, or
any public health or safety or welfare law, nor has any such entity
received any written notification that any Hazardous Materials that it
or any of its respective predecessors in interest has generated,
stored, treated, handled, transported, or disposed of, has been
released or is threatened to be released at any site at which any
Person intends to conduct or is conducting a remedial investigation or
other action pursuant to any applicable Environmental Law.
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(c) Except as set forth on Schedule 6.15(c), each of the
Borrower and its Subsidiaries has obtained all material permits,
licenses or other authorizations required for the conduct of their
respective operations under all applicable Environmental Laws and each
such authorization is in full force and effect, except where the
failure to do so would not have a Materially Adverse Effect.
(d) Each of Borrower and its Subsidiaries complies in all
material respects with all laws and regulations relating to equal
employment opportunity and employee safety in all jurisdictions in
which it is presently doing business, and Borrower will use its best
efforts to comply, and to cause each of its Subsidiaries to comply,
with all such laws and regulations which may be legally imposed in the
future in jurisdictions in which Borrower or any of its Subsidiaries
may then be doing business, except where the failure to do so would
not have a Materially Adverse Effect.
SECTION 6.16 POSSESSION OF FRANCHISES, LICENSES, ETC. Each of
Borrower and its Subsidiaries possesses all material franchises, certificates,
licenses, permits and other authorizations from governmental political
subdivisions or regulatory authorities, free from burdensome restrictions,
(including specifically all insurance agency licenses) the failure of which to
possess could have a Materially Adverse Effect and neither Borrower nor any of
its Subsidiaries is in violation of any thereof in any material respect.
SECTION 6.17 PATENTS, ETC. Except as set forth on Schedule 6.17,
each of Borrower and its Subsidiaries owns or has the right to use all patents,
trademarks, service marks, trade names, copyrights, licenses and other rights,
free from burdensome restrictions, which are necessary for the operation of its
business as presently conducted. Nothing has come to the attention of Borrower
or any of its Subsidiaries to the effect that (i) any product, process, method,
substance, part or other material presently contemplated to be sold by or
employed by Borrower or any of its Subsidiaries in connection with its business
may infringe any patent, trademark, service mark, trade name, copyright, license
or other right owned by any other Person, (ii) there is pending or threatened
any claim or litigation against or affecting Borrower or any of its Subsidiaries
contesting its right to sell or use any such product, process, method,
substance, part or other material or (iii) there is, or there is pending or
proposed, any patent, invention, device, application or principle or any
statute, law, rule, regulation, standard or code, which would in any case
prevent, inhibit or render obsolete the production or sale of any products of,
or substantially reduce the projected revenues of, or otherwise have a
Materially Adverse Effect.
SECTION 6.18 GOVERNMENTAL CONSENT. Neither the nature of Borrower
or any of its Subsidiaries nor any of their respective businesses or properties,
nor any relationship between Borrower and any other Person, nor any circumstance
in connection with the execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby is such as to require on
behalf of Borrower or any of its Subsidiaries any consent, approval or other
action by or any notice to or filing with any court or administrative or
governmental body in connection with the execution and delivery of this
Agreement and the Credit Documents.
SECTION 6.19 DISCLOSURE. Neither this Agreement nor the Credit
Documents nor any other document, certificate or written statement furnished to
Lender by or on behalf of Borrower in connection herewith contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading. There
is no fact peculiar to Borrower which materially adversely affects or in the
future may (so far as Borrower can now foresee) materially adversely affect the
business, property or assets, financial condition or prospects of Borrower
which has not been set forth in this Agreement or in the Credit Documents,
certificates and written statements furnished to Lender by or on behalf of
Borrower prior to the date hereof in connection with the transactions
contemplated hereby.
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SECTION 6.20 INSURANCE COVERAGE. Each property of Borrower or any
of its Subsidiaries is insured on terms acceptable to Lender for the benefit of
Borrower or a Subsidiary of Borrower in amounts deemed adequate by Borrower's
management and no less than those amounts customary in the industry in which
Borrower and its Subsidiaries operate against risks usually insured against by
Persons operating businesses similar to those of Borrower or its Subsidiaries in
the localities where such properties are located.
SECTION 6.21 LABOR MATTERS. Except as set forth on Schedule 6.21,
the Borrower and the Borrower's Subsidiaries have experienced no strikes, labor
disputes, slow downs or work stoppages due to labor disagreements which have
had, or would reasonably be expected to have, a Materially Adverse Effect, and,
to the best knowledge of Borrower, there are no such strikes, disputes, slow
downs or work stoppages threatened against any Borrower or any of Borrower's
Subsidiaries, the result of which could have a Materially Adverse Effect. The
hours worked and payment made to employees of the Borrower and Borrower's
Subsidiaries have not been in violation in any material respect of the Fair
Labor Standards Act or any other applicable law dealing with such matters. All
payments due from the Borrower and Borrower's Subsidiaries on account of wages
and employee health and welfare insurance and other benefits have been paid or
accrued as liabilities on the books of the Borrower and Borrower's Subsidiaries
where the failure to pay or accrue such liabilities would reasonably be expected
to have a Materially Adverse Effect.
SECTION 6.22 INTERCOMPANY LOANS; DIVIDENDS. The Intercompany
Loans and the Intercompany Credit Documents, to the extent that they exist,
have been duly authorized and approved by all necessary corporate and
shareholder action on the part of the parties thereto, and constitute the
legal, valid and binding obligations of the parties thereto, enforceable
against each of them in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting creditors' rights generally, and by general principles
of equity. There are no restrictions on the power of any Consolidated Company
to repay any Intercompany Loan or to pay dividends on the Capital Stock.
Intercompany loans as of the Closing Date are described in Schedule 6.22.
SECTION 6.23 BURDENSOME RESTRICTIONS. Except as set forth on
Schedule 6.23, none of the Consolidated Companies is a party to or bound by any
Contractual Obligation or Requirement of Law which has had or would reasonably
be expected to have a Materially Adverse Effect.
SECTION 6.24 SOLVENCY. Each of the Consolidated Company's is
solvent and able to pay its debts as and when they accrue and are due.
SECTION 6.25 FIRST, PERFECTED SECURITY INTEREST IN COLLATERAL.
The Lender, for and in behalf of the Lender, has a first, perfected security
interest in the Collateral to secure the Loans subject to no other Liens except
as permitted in Section 8.2 hereof.
SECTION 6.26 SEC COMPLIANCE AND FILINGS
(a) Borrower is and shall remain in full and complete
compliance with all applicable securities laws including, but not
limited to, all requirements of the Exchange Act, to the extent
applicable to the Borrower and its business.
(b) Borrower previously has furnished or made available
to the Lender accurate and complete copies of forms, reports, and
documents filed by Borrower with the Securities and Exchange
Commission ("SEC") since December 31, 1993 (the "SEC Documents"),
which include all reports, schedules, proxy statements, and
registration statements filed or required to be filed by Borrower with
the SEC since December 31, 1993. As of their respective dates, the
SEC Documents did not contain any untrue statement of a material fact
or omit to state
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a material fact required to be stated in those documents are necessary
to make the statements in those documents not misleading, in light of
the circumstances in which they were made.
SECTION 6.27 CAPITAL STOCK OF BORROWER AND RELATED MATTERS.
(a) The Borrower is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire
any of its Capital Stock or any warrants, options or other securities
or rights directly or indirectly convertible into or exercisable or
exchangeable for its Capital Stock.
SECTION 6.28 PLACES OF BUSINESS.
(a) The Places of Business identified in Schedule 6.28(a)
hereof constitute all the Places of Business for the Consolidated
Companies.
(b) The Places of Business identified in Schedule 6.28(b)
hereof as Material Places of Business are the only Places of Business
which are Material Places of Business.
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow under this
Agreement or so long as any indebtedness remains outstanding under the Note
that it will:
SECTION 7.1 CORPORATE EXISTENCE, ETC. Preserve and maintain, and
cause each of its Material Subsidiaries to preserve and maintain, its corporate
existence, its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, in each case where the failure to do so would
reasonably be expected to have a Materially Adverse Effect.
SECTION 7.2 COMPLIANCE WITH LAWS, ETC. Comply, and cause each of
its Subsidiaries to comply, with all Requirements of Law (including, without
limitation, all insurance agency laws and the Environmental Laws, subject to
the exception set forth in Section 7.7(f) where the penalties, claims, fines,
and other liabilities resulting from noncompliance with such Environmental Laws
do not involve amounts in excess of $250,000. in the aggregate) and material
Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Requirements of Law and material Contractual
Obligations would reasonably be expected to have a Materially Adverse Effect.
SECTION 7.3 PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services) which
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained with respect thereto.
SECTION 7.4 KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
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SECTION 7.5 VISITATION, INSPECTION, ETC. Permit, and cause each
of its Subsidiaries to permit, any representative of the Lender to visit and
inspect any of its property, to examine its books and records and to make
copies and take extracts therefrom, and to discuss its affairs, finances and
accounts with its officers, all at such reasonable times and as often as the
Lender or the Lender may reasonably request after reasonable prior notice to
Borrower; provided, however, that at any time following the occurrence and
during the continuance of a Default or an Event of Default, no prior notice to
Borrower shall be required.
SECTION 7.6 INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially
sound and reputable insurers, insurance with respect to its properties
and business, and the properties and business of the Borrower and each
of its Subsidiaries, against loss or damage of the kinds customarily
insured against by reputable companies in the same or similar
businesses, such insurance to be of such types and in such amounts,
including such self-insurance and deductible provisions, as is
customary for such companies under similar circumstances; provided,
however, that in any event Borrower shall use its best efforts to
maintain, or cause to be maintained, insurance in amounts and with
coverage not materially less favorable to any Consolidated Company as
in effect on the date of this Agreement, except where the costs of
maintaining such insurance would, in the judgment of both Borrower and
the Lender, be excessive.
(b) Cause all properties used or useful in the conduct of
each Consolidated Company to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replacements,
settlements and improvements thereof, all as in the judgment of
Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this Section shall
prevent Borrower from discontinuing the operation or maintenance of
any such properties if such discontinuance is, in the judgment of
Borrower, desirable in the conduct of its business or the business of
any Consolidated Company.
SECTION 7.7 REPORTING COVENANTS. Furnish to the Lender:
(a) Annual Financial Statements. As soon as available
and in any event within ninety days after the end of each fiscal year
of Borrower, balance sheets of the Consolidated Companies as at the
end of such year, presented on a consolidated basis, and the related
statements of income, shareholders' equity, and cash flows of the
Consolidated Companies for such fiscal year, presented on a
consolidated basis, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and
accompanied by a report thereon of Ernst and Young or other
independent public accountants of comparable recognized national
standing, which such report shall be unqualified as to going concern
and scope of audit and shall state that such financial statements
present fairly in all material respects the financial condition as at
the end of such fiscal year on a consolidated basis, and the results
of operations and statements of cash flows of the Consolidated
Companies for such fiscal year in accordance with GAAP and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with GAAP, and where
said financial statements are not consistently applied with the prior
fiscal year statements and the impact of said difference;
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(b) Quarterly Financial Statements. As soon as available
and in any event within forty-five days after the end of each fiscal
quarter of Borrower (including the fourth fiscal quarter), balance
sheets of the Consolidated Companies as at the end of such quarter
presented on a consolidated basis and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of Borrower's
fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and
certified by the chief financial officer or principal accounting
officer of Borrower that such financial statements fairly present in
all material respects the financial condition of the Consolidated
Companies as at the end of such fiscal quarter on a consolidated
basis, and the results of operations and statements of cash flows of
the Consolidated Companies for such fiscal quarter and such portion of
Borrower's fiscal year, in accordance with GAAP consistently applied
(subject to normal year end audit adjustments and the absence of
certain footnotes;
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (a), (b) and (c)
above, a certificate of the president, chief financial officer or
principal accounting officer of Borrower (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
financial statements during the period covered thereby, there exists
no Event of Default and no Default under this Agreement, or if there
exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as at the end of such
fiscal year or such fiscal quarter with Section 7.8 and Sections 8.1
through 8.4;
(d) Notice of Default. Promptly after Borrower has
notice or knowledge of the occurrence of an Event of Default or a
Default, a certificate of the chief financial officer or principal
accounting officer of Borrower specifying the nature thereof and the
proposed response thereto;
(e) Litigation. Promptly after (i) the occurrence
thereof, notice of the institution of or any adverse development in
any action, suit or proceeding or any governmental investigation or
any arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated
Company, or any material property thereof, in any case which might
have a Materially Adverse Effect, or (ii) actual knowledge thereof,
notice of the threat of any such action, suit, proceeding,
investigation or arbitration;
(f) Environmental Notices. Promptly after receipt
thereof, notice of any actual or alleged violation, or notice of any
action, claim or request for information, either judicial or
administrative, from any governmental authority relating to any actual
or alleged claim, notice of potential responsibility under or
violation of any Environmental Law, or any actual or alleged spill,
leak, disposal or other release of any Hazardous Material by any
Consolidated Company which could result in penalties, fines, claims or
other liabilities to any Consolidated Company in amounts in excess of
$250,000 individually or in the aggregate;
(g) ERISA.
A. Promptly after the occurrence thereof with
respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof, or any trust established thereunder, notice
of (x) a "reportable event" described in
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Section 4043 of ERISA and the regulations issued from time to
time thereunder (other than a "reportable event" not subject
to the provisions for thirty day notice to the PBGC under such
regulations), or (y) any other event which could subject any
Consolidated Company to any tax, penalty or liability under
Title I or Title IV of ERISA or Chapter 43 of the Code, or any
tax or penalty resulting from a loss of deduction under
Sections 162, 404 or 419 of the Code, where any such taxes,
penalties or liabilities exceed or could exceed $250,000 in
the aggregate;
B. Promptly after such notice must be provided
to the PBGC, or to a Plan participant, beneficiary or
alternative payee, any notice required under Section 101(d),
302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA
or under Section 401(a)(29) or 412 of the Code with respect to
any Plan of any Consolidated Company or any ERISA Affiliate
thereof;
C. Promptly after receipt, any notice received
by any Consolidated Company or any ERISA Affiliate thereof
concerning the intent of the PBGC or any other governmental
authority to terminate a Plan of such Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA, to
impose any liability on such Company or ERISA Affiliate under
Title IV of ERISA or Chapter 43 of the Code;
D. Upon the request of the Lender, promptly upon
the filing thereof with the Internal Revenue Service ("IRS")
or the Department of Labor ("DOL"), a copy of IRS Form 5500 or
annual report for each Plan of any Consolidated Company or
ERISA Affiliate thereof which is subject to Title IV of ERISA;
E. Upon the request of the Lender, (A) true and
complete copies of any and all documents, government reports
and IRS determination or opinion letters or rulings for any
Plan of any Consolidated Company from the IRS, PBGC or DOL,
(B) any reports filed with the IRS, PBGC or DOL with respect
to a Plan of the Consolidated Companies or any ERISA Affiliate
thereof, or (C) a current statement of withdrawal liability
for each Multi-Employer Plan of any Consolidated Company or
any ERISA Affiliate thereof;
(h) Liens. Promptly upon any Consolidated Company
becoming aware thereof, notice of the filing of any federal statutory
Lien, tax or other state or local government Lien or any other Lien
affecting their respective properties, other than Permitted Liens
except as expressly required by Section 8.2;
(i) Public Filings, Etc. Promptly upon the filing
thereof or otherwise becoming available, copies of all financial
statements, annual, quarterly and special reports, proxy statements
and notices sent or made available generally by Borrower to its public
security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any of them
with any securities exchange or any governmental or state agency, and
of all press releases and other statements made available generally to
the public containing material developments in the business or
financial condition of Borrower and the other Consolidated Companies;
(j) Accountants' Reports. Promptly upon receipt thereof,
copies of all financial statements of, and all reports submitted by,
independent public accountants to Borrower in
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connection with each annual, interim, or special audit of Borrower's
consolidated financial statements;
(k) Burdensome Restrictions, Etc. Promptly upon the
existence or occurrence thereof, notice of the existence or occurrence
of (i) any Contractual Obligation or Requirement of Law described in
Section 6.23, (ii) failure of any Consolidated Company to hold in full
force and effect those material trademarks, service marks, patents,
trade names, copyrights, licenses and similar rights necessary in the
normal conduct of its business, and (iii) any strike, labor dispute,
slow down or work stoppage as described in Section 6.21;
(l) New Material Subsidiaries. Within thirty days after
the formation or acquisition of any Material Subsidiary, or any other
event resulting in the creation of a new Material Subsidiary, notice
of the formation or acquisition of such Material Subsidiary or such
occurrence, including a description of the assets of such entity, the
activities in which it will be engaged, and such other information as
the Lender may request;
(m) Intercompany Asset Transfers. Promptly upon the
occurrence thereof, notice of the transfer of any assets from Borrower
or any Guarantor to any other Consolidated Company that is not
Borrower or a Guarantor (in any transaction or series of related
transactions), excluding sales or other transfers of assets in the
ordinary course of business, where the Asset Value of such assets is
less than $500,000;
(n) Other Information. With reasonable promptness, such
other information about the Consolidated Companies as the Lender may
reasonably request from time to time.
(o) Capital of Borrower.
(i) Notice of any sale of any Capital Stock by
the Borrower, giving for each said transaction the name and
address of the Persons involved and the Capital Stock
involved.
(ii) Any documents, notices or other writings
given by any Person owning Capital Stock in the Parent under
any stockholders agreement by one or more Persons owning
Capital Stock of the Borrower.
SECTION 7.8 MAINTAIN THE FOLLOWING FINANCIAL COVENANTS.
(a) Minimum Consolidated Net Worth. Consolidated Net
Worth shall at all times be greater than $35,000,000 plus (i) 50% of
all cumulative Consolidated Net Income earned after September 31,
1994, and (ii) the net proceeds, less appropriate expenses, of any
future stock equity issues.
(b) Consolidated Working Capital. Consolidated current
assets shall at all times be greater than 90% of consolidated current
liabilities.
(c) Fixed Debt/Debt Service Coverage Ratio. Earnings
before Interest Expense, Operating Lease Expenses and Taxes plus
Depreciation and Amortization divided by Interest Expense, Operating
Lease Expenses and Current Maturities of Long Term Debt shall at the
end of each quarter (based on the operating results for the four most
recent fiscal quarters) never be less than:
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2.00 to 1.00.
(d) Leverage Ratio. Consolidated Funded Debt divided by
Total Capital shall never be greater than:
0.55 to 1.00.
(e) Cash Flow Leverage Test. Consolidated Funded Debt
divided by Cash Flow (Net Income plus Depreciation and Amortization)
shall never be less than:
2.25 to 1.00
SECTION 7.9 NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Immediately upon its receipt thereof, Borrower shall furnish the Lender a copy
of any notice received by it, or any other Consolidated Company (i) from the
holder(s) of Indebtedness referred to in Section 8.1 (or from any trustee,
agent, attorney, or other party acting on behalf of such holder(s)) in an
amount which, in the aggregate, exceeds $250,000, where such notice states or
claims the existence or occurrence of any default or event of default with
respect to such Indebtedness under the terms of any indenture, loan or credit
agreement, debenture, note, or other document evidencing or governing such
Indebtedness, or (ii) from any regulatory insurance agency or insurance company
regrading any licenses or agreements regarding the business of the Consolidated
Company and which could have a Material Adverse Effect. Borrower agrees to
take such actions as may be necessary to require the holder(s) of any
Indebtedness (or any trustee or agent acting on their behalf) in an amount
exceeding $250,000 incurred pursuant to documents executed or amended and
restated after the Closing Date, to furnish copies of all such notices directly
to the Lender simultaneously with the furnishing thereof to Borrower, and that
such requirement may not be altered or rescinded without the prior written
consent of the Lender.
SECTION 7.10 ADDITIONAL GUARANTORS/CREDIT PARTIES/COLLATERAL.
Promptly after (i) the formation or acquisition (provided that nothing in this
Section shall be deemed to authorize the acquisition of any entity) of any
Material Subsidiary not listed on Schedule 6.12, (ii) the transfer of assets to
any Consolidated Company if notice thereof is required to be given pursuant to
Section 7.7(m) and as a result thereof the recipient of such assets becomes a
Material Subsidiary, (iii) the occurrence of any other event creating a new
Material Subsidiary, Borrower shall cause to be executed and delivered a
Guaranty Agreement from each such Material Subsidiary in the form attached
hereto as Exhibit I, the joinder to the Contribution Agreement by such Material
Subsidiary, a certificate to be added to the Pledge Agreement by the Person
owning the Capital Stock of said Material Subsidiary by which all of said
Capital Stock is pledged to the Lender, and a certificate to be added to the
Security Agreement from said Material Subsidiary whereby a first, perfected
security interest in the assets of said Material Subsidiary is granted to the
Lender, and such other documents as the Lender may reasonably request.
SECTION 7.11 OWNERSHIP OF GUARANTORS. Borrower, and each Wholly
Owned Subsidiary, as the case may be, shall maintain its percentage of
ownership existing as of the date hereof of all Guarantors, and shall not
decrease its ownership percentage in each Person which becomes a Guarantor
after the date hereof, as such ownership exists at the time such Person becomes
a Guarantor or may be increased thereafter.
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ARTICLE VIII
NEGATIVE COVENANTS
So long as the Revolving Loan Commitment remains in effect hereunder
or the Note shall remain unpaid, Borrower will not and will not permit any
Subsidiary to:
SECTION 8.1 INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof or
pursuant to lines of credit in effect on the date hereof and described
on Schedule 8.1(b), together with all extensions, renewals and
refinancings thereof, provided, however , any such extensions,
renewals and refinancings shall not, without the written consent of
the Lender, increase any such Indebtedness or modify the terms of said
Indebtedness on terms less favorable to the maker or obligor;
(c) Purchase money Indebtedness to the extent secured by
a Lien permitted by Section 8.2(b) provided such purchase money
Indebtedness does not exceed $250,000;
(d) Unsecured current liabilities (other than liabilities
for borrowed money or liabilities evidenced by promissory notes, bonds
or similar instruments) incurred in the ordinary course of business
(whether now outstanding or hereafter arising or incurred) and either
(i) not more than 30 days past due, or (ii) being disputed in good
faith by appropriate proceedings with reserves for such disputed
liability maintained in conformity with GAAP and Indebtedness in the
nature of contingent repayment obligations arising in the ordinary and
normal course of business with respect to deposits and down payments;
(e) The Intercompany Loans described on Schedule 6.22 and
any other loans between Consolidated Companies provided that no loan
or other extension of credit may be made by a Guarantor to another
Consolidated Company that is not a Guarantor hereunder and all such
loans and extensions of credit shall not exceed $250,000 in the
aggregate at any one time outstanding (excluding Intercompany Loans
listed on Schedule 6.22) unless otherwise agreed in writing by the
Lender;
(f) Unsecured, Subordinated Debt, not to exceed an
aggregate amount of $1,000,000, and other Subordinated Debt in form
and substance acceptable to the Lender and evidenced by its written
consent thereto;
SECTION 8.2 LIENS. Create, incur, assume or suffer to exist any
Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(a) Liens existing on the date hereof disclosed on
Schedule 8.2, and provided no Event of Default has occurred and is
then continuing, any renewal, extension or refunding of such Lien in
an amount not exceeding the amount thereof remaining unpaid
immediately prior to such renewal, extension or refunding;
(b) Any Lien on any property securing Indebtedness
incurred or assumed for the purpose of financing all or any part of
the acquisition cost of such property and any refinancing thereof,
provided that such Lien does not extend to any other property, and
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provided further that the aggregate principal amount of Indebtedness
secured by all such Liens at any time does not exceed $250,000;
(c) Liens for taxes not yet due, and Liens for taxes or
Liens imposed by ERISA which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves
are being maintained;
(d) Statutory Liens of landlords (excluding however any
Material Places of Business) and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the
ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary
course of business in connection with workers or workman's
compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money);
(f) Liens securing the Facilities; and
(g) Liens reserved or invested in governmental authority
(including without limitation zoning laws) which do not materially
impair the use of such property.
SECTION 8.3 SALES, ETC. Sell, lease, or otherwise dispose of its
accounts, property or other assets (including Capital Stock of Subsidiaries);
provided, however, that the foregoing restrictions on asset sales shall not be
applicable to (i) sales of equipment or other personal property being replaced
by other equipment or other personal property purchased as a capital
expenditure item, and (ii) other asset sales (including the Capital Stock of
Subsidiaries) from one Credit Party to the other.
SECTION 8.4 MERGERS, ACQUISITIONS, ETC. Merge or consolidate
with any other Person, or acquire by purchase any other person or its assets,
provided, however, that the foregoing restrictions on mergers shall not apply
to (i) Permitted Acquisition provided that notice of said pending Permitted
Acquisition is given to the Lender along with a certification after said
Permitted Acquisition that this Agreement has been complied with both before
and after said Acquisition, (ii) mergers between a Subsidiary of Borrower and
Borrower or between Subsidiaries of Borrower, or (iii) mergers between a third
party and the Borrower where the Borrower is the surviving corporation provided
that said merger is a Permitted Acquisition, provided, however, that no
transaction pursuant to clauses (i), (ii), or (iii) shall be permitted if any
Default or Event of Default otherwise exists at the time of such transaction or
would otherwise arise as a result of such transaction.
SECTION 8.5 INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries, other
than:
(a) Investments in Subsidiaries that are Guarantors under
this Agreement, whether such Subsidiaries are Guarantors on the
Closing Date or become Guarantors in accordance with Section 7.10
after the Closing Date; provided, however, nothing in this Section 8.5
shall be deemed to authorize an investment pursuant to this subsection
(a) in any entity that is not a Subsidiary and a Guarantor prior to
such investment;
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(b) Investments in Subsidiaries, other than those
Subsidiaries that are or become Guarantors under this Agreement, made
after the Closing Date, in an aggregate amount not to exceed $250,000
unless otherwise consented to in writing by the Lender;
(c) Direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency
thereof, in each case supported by the full faith and credit of the
United States and maturing within one year from the date of creation
thereof;
(d) Commercial paper maturing within one year from the
date of creation thereof rated in the highest grade by a nationally
recognized credit rating agency;
(e) Time deposits maturing within one year from the date
of creation thereof with, including certificates of deposit issued by
the Lender and any office located in the United States of any bank or
trust company which is organized under the laws of the United States
or any state thereof and has assets aggregating at least
$500,000,000, including without limitation, any such deposits in
Eurodollars issued by a foreign branch of any such bank or trust
company;
(f) Investments made by Plans;
(g) Permitted Intercompany Loans on terms and conditions
acceptable to the Lender; and
(h) Investments in stock or assets of another entity
which thereby becomes a Subsidiary, in an aggregate amount not to
exceed $5,000,000 in cash consideration, which transaction constitutes
a Permitted Acquisition.
(i) Advances made to employees in the ordinary and normal
course of business consistent with past practice and for business
purposes, and which advances are repaid by the employee within thirty
days.
SECTION 8.6 SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 8.7 TRANSACTIONS WITH AFFILIATES. Except as otherwise
approved in writing by the Lender:
(a) Enter into any material transaction or series of
related transactions which in the aggregate would be material, whether
or not in the ordinary course of business, with any Affiliate of any
Consolidated Company (but excluding any Affiliate which is also a
Wholly Owned Subsidiary), other than on terms and conditions
substantially as favorable to such Consolidated Company as would be
obtained by such Consolidated Company at the time in a comparable
arm's length transaction with a Person other than an Affiliate.
(b) Convey or transfer to any other Person (including any
other Consolidated Company) any real property, buildings, or fixtures
used in the manufacturing or production operations of any Consolidated
Company, or convey or transfer to any other Consolidated Company any
other assets (excluding conveyances or transfers in the ordinary
course of
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business) if at the time of such conveyance or transfer any Default or
Event of Default exists or would exist as a result of such conveyance
or transfer.
SECTION 8.8 OPTIONAL PREPAYMENTS. Directly or indirectly,
prepay, purchase, redeem, retire, defense or otherwise acquire, or make any
optional payment on account of any principal of, interest on, or premium
payable in connection with the optional prepayment, redemption or retirement
of, any of its Indebtedness, or give a notice of redemption with respect to any
such Indebtedness, or make any payment in violation of the subordination
provisions of any Subordinated Debt, except with respect to (i) the Obligations
under this Agreement and the Notes, (ii) prepayments of Indebtedness
outstanding pursuant to revolving credit, overdraft and line of credit
facilities permitted pursuant to Section 8.1 (c), (d), (g) and (h), (iii)
Intercompany Loans made or outstanding pursuant to Section 8.1(e), (iv)
Intercompany Loans where both Consolidated Companies are not Credit Parties
made or outstanding pursuant to Section 8.1 upon the prior written consent of
the Lender, and (v) Subordinated Debt, upon the prior written consent, of the
Lender.
SECTION 8.9 CHANGES IN BUSINESS. Enter into any business which
is substantially different from that presently conducted by the Consolidated
Companies taken as a whole.
SECTION 8.10 ERISA. Take or fail to take any action with respect
to any Plan of any Consolidated Company or, with respect to its ERISA
Affiliates, any Plans which are subject to Title IV of ERISA or to continuation
health care requirements for group health plans under the Code, including
without limitation (i) establishing any such Plan, (ii) amending any such Plan
(except where required to comply with applicable law), (iii) terminating or
withdrawing from any such Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan, without first
obtaining the written approval of the Lender and the Required Lender, to the
extent that such actions or failures could result in a Materially Adverse
Effect.
SECTION 8.11 ADDITIONAL NEGATIVE PLEDGES. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon any
asset of any Consolidated Company, other than pursuant to (i) the terms of any
agreement, instrument or other document pursuant to which any Indebtedness
permitted by Section 8.2(b) is incurred by any Consolidated Company, so long as
such prohibition or restriction applies only to the property or asset being
financed by such Indebtedness, and (ii) any requirement of applicable law or any
regulatory authority having jurisdiction over any of the Consolidated Companies.
SECTION 8.12 LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions on
such Consolidated Company's stock, or (ii) pay any indebtedness owed to
Borrower or any other Consolidated Company, or (iii) transfer any of its
property or assets to Borrower or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit Documents.
SECTION 8.13 ACTIONS UNDER CERTAIN DOCUMENTS. Without the prior
written consent of the Lender (which consent shall not be unreasonably
withheld), modify, amend, cancel or rescind the Intercompany Loans or
Intercompany Credit Documents (except that a loan between Consolidated Companies
as permitted by Section 8.1 may be modified or amended so long as it otherwise
satisfies the requirements of Section 8.1), or make demand of payment or accept
payment on any Intercompany Loans permitted by Section 8.1, except that current
interest accrued thereon as of the date of this Agreement and all interest
subsequently accruing thereon (whether or not paid currently) may be paid unless
a Default or Event of Default has occurred and is continuing.
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SECTION 8.14 FINANCIAL STATEMENTS; FISCAL YEAR. Borrower shall
make no change in the dates of the fiscal year now employed for accounting and
reporting purposes without the prior written consent of the Lender, which
consent shall not be unreasonably withheld.
SECTION 8.15 CHANGE OF MANAGEMENT. Allow or suffer to occur any
change of management of the Borrower which creates an Event of Default under
Section 9.13.
SECTION 8.16 CHANGE OF CONTROL. Allow or suffer to occur any
change of control of the Borrower in violation of Section 9.11.
SECTION 8.17 GUARANTIES. Without the prior written consent of the
Lender, extend or execute any Guaranty other than (i) endorsements of
instruments for deposit or collection in the ordinary and normal course of
business, and (ii) Guaranties acceptable in writing to the Lender.
SECTION 8.18 CHANGES IN DEBT INSTRUMENTS. Without the prior
written consent of the Lender, enter into any amendment, change or modification
of any agreement relating to any Indebtedness provided, however, the foregoing
restrictions shall not prohibit any such amendment, change or modification
where (i) it relates solely to an extension of a maturity date if said
Indebtedness is not already in default, and (ii) other changes in said
agreements which are not material, provided, however if said amendment, change
or modification constitutes the waiver of any default condition under said
agreement, notice of said matter along with a copy of said amendment, change or
modification shall be given to the Lender.
SECTION 8.19 This section is not applicable.
SECTION 8.20 NO ISSUANCE OF CAPITAL STOCK. Without the prior
written consent of the Lender permit any Subsidiary to issue any additional
Capital Stock.
SECTION 8.21 NO PAYMENTS ON SUBORDINATED DEBT. Without the prior
written consent of the Lender:
(a) The Borrower shall not make or cause any payment of
principal to be made on the Subordinated Debt unless and until all
Obligations due the Lender hereunder are paid in full; and
(b) The Borrower shall not make or cause any payment of
interest to be made on the Subordinated Debt except and only to the
extent and only during the period of time permitted under the
Subordinated Debt document; and
(c) Upon the occurrence and continuation of an Event of
Default and, as a result of which, the Lender has elected to exercise
any of the remedies under Article IX, the Borrower shall not
thereafter make or permit any payments of any nature whatsoever to be
made on any Subordinated Debt.
SECTION 8.22 INSURANCE BUSINESS. Without the prior written
consent of the Lender no Consolidated Company may engage in any business in the
nature of an insurance company, in which the Consolidated Company assumes the
risk as an insurer.
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ARTICLE IX
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.1 PAYMENTS. Borrower shall fail to make promptly when
due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Loans, or Borrower shall fail to make within five
Business Days after the due date thereof any payment of interest, fee or other
amount payable hereunder;
SECTION 9.2 COVENANTS WITHOUT NOTICE. Borrower shall fail to
observe or perform any covenant or agreement contained in Sections 7.8, 7.11,
8.1 through 8.22;
SECTION 9.3 OTHER COVENANTS. Borrower shall fail to observe or
perform any covenant or agreement contained in this Agreement, other than those
referred to in Sections 9.1 and 9.2, and, if capable of being remedied, such
failure shall remain unremedied for thirty days after the earlier of (i)
Borrower's obtaining actual knowledge thereof, or (ii) written notice thereof
shall have been given to Borrower by Lender or the Lender;
SECTION 9.4 REPRESENTATIONS. Any representation or warranty made
or deemed to be made by Borrower or any other Credit Party under this Agreement
or any other Credit Document (including the Schedules attached thereto), or any
certificate or other document submitted to the Lender or the Lender by any such
Person pursuant to the terms of this Agreement or any other Credit Document,
shall be incorrect in any material respect when made or deemed to be made or
submitted;
SECTION 9.5 NON-PAYMENTS OF OTHER INDEBTEDNESS. Any Consolidated
Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness
(other than the Obligations) exceeding $1,000,000 in the aggregate;
SECTION 9.6 DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated
Company shall fail to observe or perform any covenants or agreements contained
in any agreements or instruments relating to any of its Indebtedness exceeding
$1,000,000 in the aggregate, or any other event shall occur in respect of
Indebtedness exceeding $1,000,000 if the effect of such failure or other event
is to accelerate, or to permit the holder of such Indebtedness or any other
Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated
maturity;
SECTION 9.7 BANKRUPTCY. Any Consolidated Company, shall commence
a voluntary case concerning itself under the Bankruptcy Code or an involuntary
case for bankruptcy is commenced against any Consolidated Company and the
petition is not controverted within ten days, or is not dismissed within sixty
days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or any substantial
part of the property of any Consolidated Company; or any Consolidated Company
commences proceedings of its own bankruptcy or to be granted a suspension of
payments or any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation
or similar law of any jurisdiction, whether now or hereafter in effect,
relating to any Consolidated Company or there is commenced against any
Consolidated Company any such proceeding which remains undismissed for a period
of sixty days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered;
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or any Consolidated Company suffers any appointment of any custodian or the
like for it or any substantial part of its property to continue undischarged or
unstayed for a period of sixty days; or any Consolidated Company makes a
general assignment for the benefit of creditors; or any Consolidated Company
shall fail to pay, or shall state that it is unable to pay, or shall be unable
to pay, its debts generally as they become due; or any Consolidated Company
shall call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts; or any Consolidated Company shall by any act or
failure to act indicate its consent to, approval of or acquiescence in any of
the foregoing; or any corporate action is taken by any Consolidated Company for
the purpose of effecting any of the foregoing;
SECTION 9.8 ERISA. A Plan of a Consolidated Company or a Plan
subject to Title IV of ERISA of any of its ERISA Affiliates:
(a) shall fail to be funded in accordance with the
minimum funding standard required by applicable law, the terms of such
Plan, Section 412 of the Code or Section 302 of ERISA for any plan
year or a waiver of such standard is sought or granted with respect to
such Plan under applicable law, the terms of such Plan or Section 412
of the Code or Section 303 of ERISA; or
(b) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of such
Plan; or
(c) shall require a Consolidated Company to provide
security under applicable law, the terms of such Plan, Section 401 or
412 of the Code or Section 306 or 307 of ERISA; or
(d) results in a liability to a Consolidated Company
under applicable law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other
event a liability to the PBGC or a Plan that would have a Materially Adverse
Effect;
SECTION 9.9 MONEY JUDGMENT. A judgment or order for the payment
of money in excess of $250,000 or otherwise having a Materially Adverse Effect
shall be rendered against any other Consolidated Company, and such judgment or
order shall continue unsatisfied (in the case of a money judgment) and in
effect for a period of 30 days during which execution shall not be effectively
stayed or deferred (whether by action of a court, by agreement or otherwise);
SECTION 9.10 OWNERSHIP OF CREDIT PARTIES AND PLEDGED ENTITIES. If
shall at any time fail to own and control the required percentage of the voting
stock of any Guarantor, either directly or indirectly through a Wholly-Owned
Subsidiary, as of the date that Person became or was required to become a
Guarantor.
SECTION 9.11 CHANGE IN CONTROL OF BORROWER.
(a) Any "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act), other than
stockholders existing on the Closing Date or their affiliates and the
Persons set forth in Schedule 9.11 shall become the "beneficial
owner(s)" (as defined in said Rule 13d-3) of more than forty percent
(40%) of the shares of the outstanding Capital Stock of Borrower
entitled to vote for members of Borrower's board of directors; or
(b) Any event or condition shall occur or exist which,
pursuant to the terms of any change in control provision, requires or
permits the holder(s) of Indebtedness of any
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Consolidated Company to require that such Indebtedness be redeemed,
repurchased, defeased, prepaid or repaid, in whole or in part, or the
maturity of such Indebtedness to be accelerated in any respect.
SECTION 9.12 DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall
exist or occur any "Event of Default" as provided under the terms of any other
Credit Document (after giving effect to any applicable grace period), or any
Credit Document ceases to be in full force and effect or the validity or
enforceability thereof is disaffirmed by or on behalf of any Credit Party, or at
any time it is or becomes unlawful for any Credit Party to perform or comply
with its obligations under any Credit Document, or the obligations of any Credit
Party under any Credit Document are not or cease to be legal, valid and binding
on any such Credit Party;
SECTION 9.13 MANAGEMENT. If for any reason the Borrower shall
cease to have management personnel reasonably satisfactory to the Lender
(present management being deemed acceptable), and no successor(s) thereto
reasonably acceptable to the Lender shall have been engaged and shall have
commenced to perform his/their duties with ninety days after such cessation;
and provided that during said ninety day period, the failure to obtain any
successor management shall not have a Materially Adverse Effect. If for any
reason J. Hyatt Brown ceases to be involved with the Borrower, the Borrower
agrees that the Lender would be entitled to determine that said change is not
satisfactory to the Lender;
SECTION 9.14 ATTACHMENTS. An attachment or similar action shall
be made on or taken against any of the assets of any Consolidated Company with
an Asset Value exceeding $500,000 in aggregate and is not removed, suspended or
enjoined within thirty days of the same being made or any suspension or
injunction being lifted;
SECTION 9.15 DEFAULT UNDER SUBORDINATED LOAN DOCUMENTS. An event
of default occurs and is continuing under any Subordinated Debt;
SECTION 9.16 MATERIAL ADVERSE EFFECT. The occurrence of any
Material Adverse Effect in the financial condition of any Consolidated Company
or its business:
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Lender may, and upon the written request of the
Lender, shall, by written notice to Borrower, take any or all of the following
actions, without prejudice to the rights of the Lender, the Lender or the
holder of any Note to enforce its claims against Borrower or any other Credit
Party: (i) declare the Revolving Loan Commitment terminated, whereupon the
Commitment of the Lender shall terminate immediately and any fees due under
this Agreement shall forthwith become due and payable without any other notice
of any kind; (ii) declare the principal of and any accrued interest on the
Loans, and all other obligations owing hereunder, to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by Borrower (iii)
exercise such other remedies as are provided to the Lender under any other
Credit Document; (iv) exercise such other rights as may be provided by
applicable law; and (v) declare that all Obligations shall thereafter bear
interest at the Default Rate; provided, that, if an Event of Default specified
in Section 9.7 shall occur, the result which would occur upon the giving of
written notice by the Lender to any Credit Party, as specified in clauses (i),
(ii), (iii) or, (iv) or (v) above, shall occur automatically without the giving
of any such notice.
ARTICLE X
THIS ARTICLE IS NOT APPLICABLE.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth on
the signature pages hereof, or such other address or applicable
teletransmission number as such party may hereafter specify by notice to the
Lender and Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answerback is received,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, (iii) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
in this Section and the appropriate confirmation is received, or (iv) if given
by any other means (including, without limitation, by air courier), when
delivered or received at the address specified in this Section; provided that
notices to the Lender shall not be effective until received.
SECTION 11.2 AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the other Credit Documents, nor consent to any
departure by any Credit Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. Notwithstanding the foregoing, no amendment, waiver or
consent shall, unless in writing and signed by the Lender in addition to the
Lender required hereinabove to take such action, affect the rights or duties of
the Lender under this Agreement or under any other Credit Document.
SECTION 11.3 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay
on the part of the Lender in exercising any right or remedy hereunder or under
any other Credit Document, and no course of dealing between any Credit Party and
the Lender, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right or remedy hereunder or thereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
which the Lender, would otherwise have. No notice to or demand on any Credit
Party not required hereunder or under any other Credit Document in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Lender, any other or further action in any circumstances without notice or
demand.
SECTION 11.4 PAYMENT OF EXPENSES, ETC. Borrower shall:
(a) whether or not the transactions hereby contemplated
are consummated, pay all reasonable, out-of-pocket costs and expenses
of the Lender in the administration (both before and after the
execution hereof and including reasonable expenses actually incurred
relating to advice of counsel as to the rights and duties of the
Lender with respect thereto) of, and in connection with the
preparation, execution and delivery of, preservation of rights under,
enforcement of, and, after a Default or Event of Default, refinancing,
renegotiation or restructuring of, this Agreement and the other Credit
Documents and the documents and instruments referred to therein, and
any amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees actually incurred and disbursements of
counsel for the Lender), and in the case of enforcement of this
Agreement or any Credit Document after the occurrence and during the
continuance of an Event of Default, all such reasonable, out-of-pocket
costs and expenses (including, without limitation, the reasonable fees
actually incurred and disbursements of counsel), for any of the
Lender;
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(b) subject, in the case of certain Taxes, to the
applicable provisions of Section 4.7(b), pay and hold the Lender
harmless from and against any and all present and future stamp,
documentary, intangible and other similar Taxes with respect to this
Agreement, the Notes and any other Credit Documents, any collateral
described therein, or any payments due thereunder, including interest
and penalties and save the Lender harmless from and against any and
all liabilities with respect to or resulting from any delay or
omission of Borrower to pay such Taxes, provided, however, nothing
contained in this subsection shall obligate the Borrower to pay any
taxes based on the overall income of the Lender; and
(c) indemnify the Lender, and its officers, directors,
employees, representatives and agents from, and hold each of them
harmless against, any and all costs, losses, liabilities, claims,
damages or expenses incurred by any of them (whether or not any of
them is designated a party thereto) (an "Indemnitee") arising out of
or by reason of any third party investigation, litigation or other
proceeding related to any actual or proposed use of the proceeds of
any of the Loans or any Credit Party's entering into and performing of
the Agreement, the Notes, or the other Credit Documents, including,
without limitation, the reasonable fees actually incurred and
disbursements of counsel (including foreign counsel) incurred in
connection with any such third party investigation, litigation or
other proceeding; provided, however, Borrower shall not be obligated
to indemnify any Indemnitee for any of the foregoing arising out of
such Indemnitee's gross negligence or willful misconduct or the breach
by the Indemnitee of its obligations under this Agreement;
(d) without limiting the indemnities set forth in
subsection (c) above, indemnify each Indemnitee for any and all
expenses and costs (including without limitation, remedial, removal,
response, abatement, cleanup, investigative, closure and monitoring
costs), losses, claims (including claims for contribution or indemnity
and including the cost of investigating or defending any claim and
whether or not such claim is ultimately defeated, and whether such
claim arose before, during or after any Credit Party's ownership,
operation, possession or control of its business, property or
facilities or before, on or after the date hereof, and including also
any amounts paid incidental to any compromise or settlement by the
Indemnitee or Indemnitees to the holders of any such claim), lawsuits,
liabilities, obligations, actions, judgments, suits, disbursements,
encumbrances, liens, damages (including without limitation damages for
contamination or destruction of natural resources), penalties and
fines of any kind or nature whatsoever (including without limitation
in all cases the reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith) incurred, suffered
or sustained by that Indemnitee based upon, arising under or relating
to Environmental Laws based on, arising out of or relating to in whole
or in part, the existence or exercise of any rights or remedies by any
Indemnitee under this Agreement, any other Credit Document or any
related documents (but excluding those incurred, suffered or sustained
by any Indemnitee as a result of any action taken by or on behalf of
the Lender with respect to any Subsidiary of Borrower (or the assets
thereof) owned or controlled by the Lender). The indemnity permitted
in this clause (d) shall (i) not apply as to any Indemnity to any
costs or expenses in connection with any condition, suspected
condition, threatened condition or alleged condition which first
arises and occurs after said Indemnitee Lender succeeds to the
ownership of, takes possession of or operates the business or any
property of the Borrower or any of its Subsidiaries, and (ii) in the
case of cleanup, investigative, closure and monitoring costs
concerning or relating to Hazardous Materials or any Environmental
Laws shall only apply after an Event of Default has occurred and is
continuing provided that the Credit Party is then undertaking and
fulfilling all its obligations under this Agreement and Environmental
Laws with respect to said cleanup, investigation, closure and
monitoring.
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If and to the extent that the obligations of Borrower under this Section 11.4
are unenforceable for any reason, Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 11.5 RIGHT OF SET-OFF. In addition to and not in
limitation of all rights of offset that the Lender may have under applicable
law, the Lender shall, upon the occurrence and during the continuance of any
Event of Default and whether or not the Lender has made any demand or any Credit
Party's obligations are matured, have the right to appropriate and apply to the
payment of any Credit Party's obligations hereunder and under the other Credit
Documents, all deposits of any Credit Party (general or special, time or demand,
provisional or final, other than escrow or trust accounts denoted as such) then
or thereafter held by and other indebtedness or property then or thereafter
owing by the Lender, whether or not related to this Agreement or any transaction
hereunder. The Lender shall promptly notify Borrower of any offset hereunder.
SECTION 11.6 BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns
of the parties hereto, provided that Borrower may not assign or
transfer any of its interest hereunder without the prior written
consent of the Lender except as otherwise provided in this Agreement.
(b) The Lender may make, carry or transfer Loans at, to
or for the account of, any of its branch offices or the office of an
Affiliate of the Lender.
(c) The Lender may assign all or a portion of its
interests, rights and obligations under this Agreement (including all
or a portion of any of its Commitments and the Loans at the time owing
to it and the Notes held by it) to any Eligible Assignee; provided,
however, that (i) the Borrower must give prior written consent to such
assignment (which consent shall not be unreasonably withheld or
delayed) unless such assignment is to an Affiliate of the assigning
Lender, (ii) the amount of the Revolving Loan Commitments, or Loans,
in the case of assignment of Loans, of the assigning Lender subject to
each assignment (determined as of the date the assignment and
acceptance with respect to such assignment is delivered to the Lender)
shall not be less than $1,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Lender an Assignment and
Acceptance, together with a Note or Notes subject to such assignment
and, unless such assignment is to an Affiliate of the Lender, a
processing and recordation fee of $2,500, and (iv) the Eligible
Assignee has the ability to satisfy the obligations of said Lender
hereunder. Borrower shall not be responsible for such processing and
recordation fee or any costs or expenses incurred by the Lender or the
Lender in connection with such assignment. From and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be at least one (1) Business Days after the
execution thereof, the assignee thereunder shall be a party hereto and
to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this
Agreement. Notwithstanding the foregoing, the assigning Lender must
retain after the consummation of such Assignment and Acceptance, a
minimum aggregate amount of Commitments or Loans, as the case may be,
of $2,000,000; provided, however, no such minimum amount shall be
required with respect to any such assignment made at any time there
exists an Event of Default hereunder. Within one (1) Business Days
after receipt of the notice and the Assignment and Acceptance,
Borrower, at its own expense, shall execute and deliver to the Lender,
in exchange for the surrendered Note or Notes (which shall be marked
"canceled" and delivered to Borrower), a new Note or Notes to the
order of such assignee in a principal amount equal to the applicable
Commitments or Loans assumed by it pursuant to such Assignment and
Acceptance and new Note or Notes to the assigning
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Lender in the amount of its retained Commitment or Commitments or
amount of its retained Loans. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the date of the
surrendered Note or Notes which they replace, and shall otherwise be
in substantially the form attached hereto.
(d) The Lender may, without the consent of Borrower, sell
participations to one or more of its Affiliate banks in all or a
portion of its rights and obligations under this Agreement (including
all or a portion of its Commitments in the Loans owing to it and the
Notes held by it).
(e) The Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
proposed assignee or participant any information relating to Borrower
or the other Consolidated Companies furnished to the Lender by or on
behalf of Borrower or any other Consolidated Company. With respect to
any disclosure of confidential, non- public, proprietary information,
such proposed assignee or participant shall agree to use the
information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the
information in any manner prohibited by any law, including without
limitation, the securities laws of the United States. The proposed
participant or assignee shall agree not to disclose any of such
information except (i) to directors, employees, auditors or counsel to
whom it is necessary to show such information, each of whom shall be
informed of the confidential nature of the information, (ii) in any
statement or testimony pursuant to a subpoena or order by any court,
governmental body or other agency asserting jurisdiction over such
entity, or as otherwise required by law (provided prior notice is
given to Borrower and the Lender unless otherwise prohibited by the
subpoena, order or law), and (iii) upon the request or demand of any
regulatory agency or authority with proper jurisdiction. The proposed
participant or assignee shall further agree to return all documents or
other written material and copies thereof received from the Lender,
the Lender or Borrower relating to such confidential information
unless otherwise properly disposed of by such entity.
(f) The Lender may at any time assign all or any portion
of its rights in this Agreement and the Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release
the Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.7(b) have
been levied or imposed so as to require withholdings or deductions by
Borrower and payment by Borrower of additional amounts to the Lender
as a result thereof, (ii) the Lender shall make demand for payment of
any material additional amounts as compensation for increased costs
pursuant to Section 4.10 or for its reduced rate of return pursuant to
Section 4.16, or (iii) the Lender shall decline to consent to a
modification or waiver of the terms of this Agreement or the other
Credit Documents requested by Borrower, then and in such event, upon
request from Borrower delivered to the Lender and the Lender, such
Lender shall assign, in accordance with the provisions of Section
11.6(c), all of its rights and obligations under this Agreement and
the other Credit Documents to another Lender or an Eligible Assignee
selected by Borrower, in consideration for the payment by such
assignee to the Lender of the principal of, and interest on, the
outstanding Loans accrued to the date of such assignment, and the
assumption of such Lender's Commitment hereunder, together with any
and all other amounts owing to such Lender under any provisions of
this Agreement or the other Credit Documents accrued to the date of
such assignment.
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SECTION 11.7 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAW PRINCIPLES THEREOF) OF THE STATE OF FLORIDA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE CIRCUIT COURT OF ORANGE COUNTY, FLORIDA, OR ANY OTHER COURT OF THE
STATE OF FLORIDA OR OF THE UNITED STATES OF AMERICA FOR THE MIDDLE
DISTRICT OF FLORIDA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND, TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LITIGATION, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION
OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) BORROWER HEREBY IRREVOCABLY DESIGNATES THE PRESIDENT
OF THE BORROWER, AS SO DESIGNATED FROM TIME TO TIME, AT THE ADDRESS
SET FORTH ON THE BORROWER'S SIGNATURE PAGE TO THIS AGREEMENT AS ITS
DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND ON BEHALF OF
BORROWER, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES
OR ANY DOCUMENT RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH
PROCESS SERVED ON SUCH LOCAL LENDER WILL BE PROMPTLY FORWARDED BY SUCH
LOCAL LENDER AND BY THE SERVER OF SUCH PROCESS BY MAIL TO BORROWER AT
ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, BUT, TO THE EXTENT
PERMITTED BY LAW, THE FAILURE OF BORROWER TO RECEIVE SUCH COPY SHALL
NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Lender
or any Credit Party to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against
Borrower in any other jurisdiction.
SECTION 11.8 INDEPENDENT NATURE OF LENDER' RIGHTS. The amounts
payable at any time hereunder to the Lender shall be a separate and independent
debt, and the Lender shall be entitled to protect and enforce its rights
pursuant to this Agreement and its Notes, and it shall not be necessary for any
other Lender to be joined as an additional party in any proceeding for such
purpose.
SECTION 11.9 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
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SECTION 11.10 EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date
(the "Effective Date") on which all of the parties hereto shall have
signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Lender pursuant
to Section 11.1.
(b) The obligations of Borrower intended to survive
hereunder shall so survive payment in full of the Notes provide,
however, the obligations of the Borrower under Sections 4.7(b), 4.10,
4.12, 4.13, and 4.16 hereof shall survive for ninety (90) days after
the payment in full of the Notes after the Final Maturity Date. All
representations and warranties made herein, in the certificates,
reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement,
the other Credit Documents, and such other agreements and documents,
the making of the Loans hereunder, and the execution and delivery of
the Notes.
SECTION 11.11 SEVERABILITY. In case any provision in or obligation
under this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 11.12 INDEPENDENCE OF COVENANTS. All covenants hereunder
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitation of, another covenant,
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
SECTION 11.13 CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX
LAWS. If (i) any preparation of the financial statements referred to in
Section 7.7 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accounts (or
successors thereto or agencies with similar functions) (other than changes
mandated by FASB 106) result in a material change in the method of calculation
of financial covenants, standards or terms found in this Agreement, (ii) there
is any change in Borrower's fiscal quarter or fiscal year, or (iii) there is a
material change in federal tax laws which materially affects any of the
Consolidated Companies' ability to comply with the financial covenants,
standards or terms found in this Agreement, Borrower and the Lender agree to
enter into negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria for evaluating
any of the Consolidated Companies, financial condition shall be the same after
such changes as if such changes had not been made. Unless and until such
provisions have been so amended, the provisions of this Agreement shall govern.
SECTION 11.14 HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings
of the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all
prior agreements, representations and understandings related to such subject
matters.
SECTION 11.15 TIME IS OF THE ESSENCE. Time is of the essence in
interpreting and performing this Agreement and all other Credit Documents.
SECTION 11.16 USURY. It is the intent of the parties hereto not to
violate any federal or state law, rule or regulation pertaining either to usury
or to the contracting for or charging or collecting of interest, and
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Borrower and Lender agree that, should any provision of this Agreement or of
the Notes, or any act performed hereunder or thereunder, violate any such law,
rule or regulation, then the excess of interest contracted for or charged or
collected over the maximum lawful rate of interest shall be applied to the
outstanding principal indebtedness due to Lender by Borrower under this
Agreement.
SECTION 11.17 CONSTRUCTION. Should any provision of this Agreement
require judicial interpretation, the parties hereto agree that the court
interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one party by reason of
the rule of construction that a document is to be more strictly construed
against the party who itself or through its agents prepared the same, it being
agreed that Borrower, Lender, Lender and their respective agents have
participated in the preparation hereof.
SIGNATURE PAGE FOLLOW
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SIGNATURE PAGE TO REVOLVING LOAN
--------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
BORROWER:
POE & BROWN, INC.
Address For Notices:
By: J. Hyatt Brown
--------------------------
220 South Ridgewood Avenue J. Hyatt Brown,
Daytona Beach, Florida 23115-2412 President & Chief Executive Officer
Attention: Chief Financial Officer
----------------------- By: Timothy L. Young
--------------------------
Timothy L. Young,
Telephone No.: 1-800-877-2769 Treasurer
--------------------
Telecopy No.: 904-239-7252
--------------------
With a Copy To:
Cobb Cole & Bell
150 Magnolia Avenue
Post Office Box 2491
Daytona Beach, FL 32115-2491
Attention: Jonathan D. Kabey, Jr.
Telephone No. 904-255-8171
Telecopy No. 904-258-5068
Address for Notices: SUN BANK, NATIONAL ASSOCIATION,
Individually and as Lender
200 South Orange Avenue
6th Floor, SOAB
Post Office Box 3833
Orlando, Florida 32897 By: C. J. Aguilar
--------------------------
C. J. Aguilar,
Attention: C.J. Aguilar, First Vice President
First Vice President
Telephone No.: (407) 237-5298
Telecopy No.: (407) 237-5398