Exhibit 10.1
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
dated as of November 10, 2004
among
PATRIOT TRANSPORTATION HOLDING, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS; CONSTRUCTION 1
Section 1.1 Definitions 1
Section 1.2 Classifications of Loans and Borrowings 17
Section 1.3 Accounting Terms and Determination 17
Section 1.4 Terms Generally 17
ARTICLE 2 AMOUNT AND TERMS OF THE COMMITMENTS 18
Section 2.1 General Description of Facility 18
Section 2.2 Revolving Loans 18
Section 2.3 Procedure for Revolving Borrowings 18
Section 2.4 Swingline Commitment 19
Section 2.5 Procedure for Swingline Borrowing; Etc. 19
Section 2.6 Funding of Borrowings 20
Section 2.7 Interest Elections 21
Section 2.8 Optional Reduction and Termination of Commitments 22
Section 2.9 Repayment of Loans 22
Section 2.10 Evidence of Indebtedness 23
Section 2.11 Optional Prepayments 23
Section 2.12 Interest on Loans 24
Section 2.13 Fees 25
Section 2.14 Computation of Interest and Fees 26
Section 2.15 Inability to Determine Interest Rates 26
Section 2.16 Illegality 26
Section 2.17 Increased Costs 27
Section 2.18 Funding Indemnity 28
Section 2.19 Taxes 28
Section 2.20 Payments Generally; Pro Rata Treatment;
Sharing of Set-Offs 29
Section 2.21 Mitigation of Obligations 31
Section 2.22 Letter of Credit Commitment 31
Section 2.23 Procedure for Issuance and Reimbursement
of Letters of Credit 31
Section 2.24 Increased Cost 33
Section 2.25 Obligations Absolute 33
Section 2.26 Letter of Credit Documents 34
ARTICLE 3 CONDITIONS PRECEDENT TO LOANS 34
Section 3.1 Conditions To Effectiveness 34
Section 3.2 Each Credit Event 36
Section 3.3 Delivery of Documents 36
ARTICLE 4 REPRESENTATIONS AND WARRANTIES 36
Section 4.1 Existence; Power 37
Section 4.2 Organizational Power; Authorization 37
Section 4.3 Governmental Approvals; No Conflicts 37
Section 4.4 Financial Statements 37
Section 4.5 Litigation and Environmental Matters 38
</table>
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Section 4.6 Compliance with Laws and Agreements 38
Section 4.7 Investment Company Act, Etc. 38
Section 4.8 Taxes 38
Section 4.9 Margin Regulations 39
Section 4.10 ERISA 39
Section 4.11 Ownership of Property 39
Section 4.12 Disclosure 39
Section 4.13 Labor Relations 40
Section 4.14 Subsidiaries 40
Section 4.15 Legal Name 40
Section 4.16 No Restrictions on Dividends 40
Section 4.17 Solvency 40
Section 4.18 Insurance 40
Section 4.19 Outstanding Indebtedness 41
ARTICLE 5 AFFIRMATIVE COVENANTS 41
Section 5.1 Financial Statements and Other Information 41
Section 5.2 Notices of Material Events 42
Section 5.3 Existence; Conduct of Business 43
Section 5.4 Compliance with Laws, Etc. 43
Section 5.5 Payment of Obligations 43
Section 5.6 Books and Records 43
Section 5.7 Visitation, Inspection, Etc. 44
Section 5.8 Maintenance of Properties; Insurance 44
Section 5.9 Use of Proceeds 44
Section 5.10 Additional Subsidiaries 44
ARTICLE 6 FINANCIAL COVENANTS 45
Section 6.1 Leverage Ratio 45
Section 6.2 Consolidated Total Debt to EBITDA Ratio 45
Section 6.3 Fixed Charge Coverage Ratio 45
ARTICLE 7 NEGATIVE COVENANTS 45
Section 7.1 Indebtedness 45
Section 7.2 Negative Pledge 46
Section 7.3 Fundamental Changes. 47
Section 7.4 Investments, Loans, Etc. 48
Section 7.5 Restricted Payments 49
Section 7.6 Sale of Assets 49
Section 7.7 Transactions with Affiliates 49
Section 7.8 Restrictive Agreements 50
Section 7.9 Sale and Leaseback Transactions 50
Section 7.10 Hedging Agreements 50
Section 7.11 Amendment to Material Documents 51
Section 7.12 Permitted Subordinated Indebtedness 51
Section 7.13 Accounting Changes 51
Section 7.14 Name Changes. 51
ARTICLE 8 EVENTS OF DEFAULT 51
Section 8.1 Events of Default 51
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ARTICLE 9 THE ADMINISTRATIVE AGENT 54
Section 9.1 Appointment of Administrative Agent 54
Section 9.2 Nature of Duties of Administrative Agent 54
Section 9.3 Lack of Reliance on the Administrative Agent 55
Section 9.4 Certain Rights of the Administrative Agent 55
Section 9.5 Reliance by Administrative Agent 56
Section 9.6 The Administrative Agent in its Individual Capacity 56
Section 9.7 Successor Administrative Agent 56
ARTICLE 10 MISCELLANEOUS 57
Section 10.1 Notices 57
Section 10.2 Waiver; Amendments 58
Section 10.3 Expenses; Indemnification 59
Section 10.4 Successors and Assigns 60
Section 10.5 Governing Law; Jurisdiction; Consent to
Service of Process 63
Section 10.6 WAIVER OF JURY TRIAL 63
Section 10.7 Right of Setoff 64
Section 10.8 Counterparts; Integration 64
Section 10.9 Survival 64
Section 10.10 Severability 64
Section 10.11 Confidentiality 65
Section 10.12 Interest Rate Limitation 65
</table>
Schedules
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee
Agreement with Schedule I and Annex I thereto
Exhibit E - Form of Indemnity, Subrogation and Contribution
Agreement with Schedule I and Annex I thereto
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.5 - Notice of Swingline Borrowing
Exhibit 2.7 - Notice of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary?s Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") is made and entered into as of November 10, 2004, by
and among PATRIOT TRANSPORTATION HOLDING, INC., a Florida
corporation (the "Borrower"), the several banks and other
financial institutions from time to time party hereto (the
"Lenders"), and WACHOVIA BANK, NATIONAL ASSOCIATION, in its
capacity as Administrative Agent for the Lenders (the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, Wachovia Bank, National Association
("Wachovia"), Bank of America, N.A. ("Bank of America"), SunTrust
Bank ("SunTrust") and Compass Bank ("Compass") are parties to a
Revolving Credit Agreement dated as of January 9, 2002, as
amended by First Amendment dated as of December 1, 2003 (the
"Original Credit Agreement"), with SunTrust named therein as
Administrative Agent; and
WHEREAS, the parties wish to make certain modifications to
the Original Credit Agreement, including a change of
Administrative Agent, all as more fully set forth below; and
WHEREAS, subject to the terms and conditions of this
Agreement, the Lenders severally, to the extent of their
respective Commitments, are willing to establish a modified
revolving credit facility for the benefit of the Borrower.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders and
the Administrative Agent agree that the Original Credit Agreement
is amended and restated to read as follows::
ARTICLE 1
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions
In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and
plural forms of the terms defined):
"Administrative Agent" shall have the meaning assigned to
such term in the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to
each Lender, an administrative questionnaire in the form prepared
by the Administrative Agent and heretofore or hereafter submitted
to the Administrative Agent duly completed by such Lender.
"Affiliate" shall mean, as to any Person, any other Person
that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such
Person.
"Aggregate Revolving Commitments" shall mean the sum of the
Revolving Commitments of all Lenders at any time outstanding. On
the Closing Date, the Aggregate Revolving Commitments equal
$37,000,000.00.
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or an
Affiliate of such Lender) designated for such Type of Loan in the
Administrative Questionnaire submitted by such Lender or such
other office of such Lender (or an Affiliate of such Lender) as
such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" shall mean the respective number of
basis points per annum designated below determined based on the
Borrower's Leverage Ratio:
LEVEL Leverage Applicable Margin
Ratio (basis points per annum)
- --------------------------------------------------
Base Commitment
Rate LIBOR Fee
- --------------------------------------------------
I >=.45 to .55 100.0 150.0 25.0
- --------------------------------------------------
II >=.35 to <.45 75.0 125.0 20.0
- --------------------------------------------------
III <.35 25.0 100.0 15.0
- --------------------------------------------------
; provided, however, that adjustments, if any, to the Applicable
Margin based on changes in the Borrower's Leverage Ratio as set
forth above shall be calculated by the Administrative Agent
quarterly, based upon the Borrower's quarterly financial
statements, on a rolling four quarter basis, beginning with the
Borrower's statements for the period ended September 30, 2004,
and shall become effective (each an "Interest Rate Change Date"),
(i) if interest is based on the Base Rate, on the third Day after
the Administrative Agent receives the Covenant Compliance
Certificate and/or the financial statements reflecting such
change in the Borrower's Leverage Ratio or (ii) if interest is
based on LIBOR, on the first Day of the Interest Period following
the Interest Period that the Bank receives the Covenant
Compliance Certificate and/or the financial statements reflecting
such change in the Borrower's Leverage Ratio; and provided,
further, however, if the Borrower shall fail to deliver any such
Covenant Compliance Certificate or financial statements within
the time period required pursuant to this Agreement, then the
Applicable Margin shall be at Level I until the appropriate
Covenant Compliance Certificate or financial statements, as the
case may be, are so delivered. Notwithstanding the foregoing,
the Applicable Margin from the Closing Date until the date that
the financial statements and/or
Covenant Compliance Certificate for the fiscal quarter ending
September 30, 2004 are required to be delivered to the
Administrative Agent shall be at Level III.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of
Exhibit C attached hereto or any other form approved by the
Administrative Agent.
"Available Amount" means on the calculation date, the
maximum amount available to be drawn under any Letter of Credit.
"Availability Period" shall mean the period from the Closing
Date to the Commitment Termination Date.
"Base Rate" shall mean the per annum rate which the
Administrative Agent publicly announces from time to time to be
its prime lending rate, as in effect from time to time. The
Administrative Agent's prime lending rate is a reference rate and
does not necessarily represent the lowest or best rate charged to
customers. The Administrative Agent may make commercial loans or
other loans at rates of interest at, above or below the
Administrative Agent's prime lending rate. Each change in the
Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being
effective.
"Base Rate Loan" when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, bears interest at a rate determined by reference
to the Base Rate.
"Borrower" shall have the meaning in the introductory
paragraph hereof.
"Borrowing" shall mean a borrowing consisting of (i) Loans
of the same Class and Type, made, converted or continued on the
same date and in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday,
Sunday or other day on which commercial banks in Charlotte, North
Carolina are authorized or required by law to close and (ii) if
such day relates to a Borrowing of, a payment or prepayment of
principal or interest on, a conversion of or into, or an Interest
Period for, a Eurodollar Loan or a notice with respect to any of
the foregoing, any day on which dealings in Dollars are carried
on in the London interbank market.
"Capital Expenditures" shall mean for any period, without
duplication, (i) the additions to property, plant and equipment
and other capital expenditures of the Borrower and its
Subsidiaries that are (or would be) set forth on a consolidated
statement of cash flows of the Borrower for such period prepared
in accordance with GAAP and (ii) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any
lease (or other arrangement conveying the right to use) of real
or personal property, or a combination thereof, which obligations
are required to be
classified and accounted for as capital leases on a balance sheet
of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in
accordance with GAAP.
"Change in Control" shall mean the occurrence of one or more
of the following events: (a) any sale, lease, exchange or other
transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the
Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder in effect on the date hereof),
(b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or "group" (within the
meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder as in effect on
the date hereof) of thirty percent (30%) or more of the
outstanding shares of the voting stock of the Borrower; or (c)
occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were
neither (i) nominated by the current board of directors or (ii)
appointed by directors so nominated.
"Change in Law" shall mean (i) the adoption of any
applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or
regulation, or any change in the interpretation or application
thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable
Lending Office) (or for purposes of Section 2.17(b) or Section
2.24, by such Lender's holding company, if applicable) with any
request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the
date of this Agreement.
"Class," when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans or Swingline Loans and when used
in reference to any Commitment, refers to whether such Commitment
is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean November 10, 2004.
"Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Commitment" shall mean a Revolving Commitment or a
Swingline Commitment or any combination thereof (as the context
shall permit or require).
"Commitment Termination Date" shall mean the earliest of (i)
December 31, 2009, (ii) the date on which the Revolving
Commitments are terminated pursuant to Section 2.8 or (iii) the
date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable
(whether by acceleration or otherwise).
"Consolidated Current Maturities of Long Term Debt" shall
mean the portion of Consolidated Long Term Debt of the Borrower
and its Subsidiaries, on a consolidated basis determined in
accordance with GAAP, paid during the twelve (12) month period
ending on the last day of the month prior to the date as of which
said determination is to be made.
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a)
Consolidated Net Income for such period plus (b) to the extent
deducted in determining Consolidated Net Income for such period,
(i) Consolidated Interest Expense, (ii) Consolidated Income Tax
Expense, and (iii) depreciation, depletion and amortization
determined on a consolidated basis in accordance with GAAP in
each case for such period.
"Consolidated Income Tax Expense" shall mean, for the
Borrower and its Subsidiaries for any period determined on a
consolidated basis in accordance with GAAP, the aggregate of (i)
all taxes based upon or measured by the income of the Borrower
and its Subsidiaries and (ii) franchise taxes (based on income)
payable by the Borrower and its Subsidiaries.
"Consolidated Interest Expense" shall mean, for the Borrower
and its Subsidiaries for any period determined on a consolidated
basis in accordance with GAAP, the sum of (i) total cash interest
expense, including without limitation the interest component of
any payments in respect of Capital Leases Obligations capitalized
or expensed during such period (whether or not actually paid
during such period) plus (ii) the net amount payable (or minus
the net amount receivable) under Hedging Agreements during such
period (whether or not actually paid or received during such
period).
"Consolidated Long Term Debt" shall mean, for any period,
all Indebtedness of the Borrower and its Subsidiaries, or any
portion thereof, determined on a consolidated basis and in
accordance with GAAP, the maturity of which extends beyond twelve
(12) months from the date of calculation of Consolidated Long
Term Debt.
"Consolidated Net Income" shall mean, for any period, the
net income (or loss) of the Borrower and its Subsidiaries for
such period determined on a consolidated basis in accordance with
GAAP, but excluding therefrom (to the extent otherwise included
therein) (i) any extraordinary gains or losses, (ii) any gains
attributable to write-ups of assets, (iii) any equity interest of
the Borrower or any Subsidiary of the Borrower in the unremitted
earnings of any Person that is not a Subsidiary and (iv) any
income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with the
Borrower or any Subsidiary on the date that such Person's assets
are acquired by the Borrower or any Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, the
total assets of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such
date prepared in accordance with GAAP, after eliminating all
amounts properly attributable to minority interests, if any, in
the stock and surplus of Subsidiaries, minus the sum of (i) the
total liabilities of the Borrower and its Subsidiaries that would
be reflected on the Borrower's consolidated balance sheet as of
such date prepared in accordance with GAAP and (ii) the amount of
any write-up in the book value of any assets resulting from a
revaluation thereof or any write-up in excess of the cost of such
assets acquired reflected on the consolidated balance sheet of
the Borrower as of such date prepared in accordance with GAAP.
"Consolidated Total Capital" shall mean, as of any date of
determination with respect to the Borrower, the sum of (i)
Consolidated Total Debt and (ii) Consolidated Net Worth.
"Consolidated Total Debt" shall mean, as of any date of
determination, all Indebtedness of the Borrower and its
Subsidiaries that would be reflected on a consolidated balance
sheet of the Borrower prepared in accordance with GAAP as of such
date.
"Control" shall mean the power, directly or indirectly,
either to (i) vote five percent (5%) or more of securities having
ordinary voting power for the election of directors (or persons
performing similar functions) of a Person or (ii) direct or cause
the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling," "Controlled by," and "under
common Control with" have meanings correlative thereto.
"Covenant Compliance Certificate" shall mean a certificate
in such form as may be acceptable to the Administrative Agent,
containing all the financial covenants and ratios with which the
Borrower is required to comply during the term of this Agreement
and containing calculations reflecting whether or not the
Borrower is in compliance with each such financial covenant or
ratio.
"Default" shall mean any condition or event that, with the
giving of notice or the lapse of time or both, would constitute
an Event of Default.
"Default Interest" shall have the meaning set forth in
Section 2.12(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the
United States of America.
"Environmental Laws" shall mean all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in
any way to the environment, preservation or reclamation of
natural resources, the management, Release or threatened Release
of any Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability,
contingent or otherwise (including any liability for damages,
costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages,
penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any
actual or alleged violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) any actual or alleged
exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and any successor
statute.
"ERISA Affiliate" shall mean any trade or business (whether
or not incorporated), which, together with the Borrower, is
treated as a single employer under Section 414(b) or (c) of the
Code or, solely for the purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan;
(d) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator appointed
by the PBGC of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within
the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, bears interest at a rate determined by reference
to the LIBOR.
"Event of Default" shall have the meaning provided in
Article 8.
"Excluded Taxes" shall mean with respect to the
Administrative Agent, any Lender or any other recipient of any
payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender, any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.19(e), except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.19(a).
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%)
equal 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 by the
Federal Reserve Bank of New York on the next succeeding Business
Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded
upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent.
"Fixed Charge Coverage Ratio" shall mean, for any period of
four consecutive fiscal quarters of the Borrower, the ratio of
(a) Consolidated EBITDA for such period less Consolidated Income
Tax Expenses to (b) the sum of Consolidated Interest Expense plus
Consolidated Current Maturities of Long Term Debt for such
period.
"Foreign Lender" shall mean any Lender that is organized
under the laws of a jurisdiction other than that of the Borrower.
For purposes of this definition, the United States of America or
any State thereof or the District of Columbia shall constitute
one jurisdiction.
"GAAP" shall mean generally accepted accounting principles
in the United States applied on a consistent basis and subject to
the terms of Section 1.3.
"Governmental Authority" shall mean the government of the
United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean
any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly
and including any obligation, direct or indirect, of the
guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued
in support of such Indebtedness or obligation; provided, that the
term "Guarantee" shall not include endorsements for collection or
deposits in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which
the Guarantee is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as
determined by such Person in good faith. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantors" shall mean FRTL, Inc., Florida Rock and Tank
Lines, Inc., Sunbelt Transport, Inc., Florida Rock Properties,
Inc., FRP Development Corp. and any future Subsidiary which is
required pursuant to Section 5.10 to become a Guarantor.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts,
commodity agreements and other similar agreements or arrangements
designed to protect against fluctuations in interest rates,
currency values or commodity values.
"Indebtedness" of any Person shall mean, without duplication
(i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all obligations of such
Person in respect of the deferred purchase price of property or
services (other than trade payables incurred in the ordinary
course of business; provided, that for purposes of Section
8.1(f), trade payables overdue by more than 120 days shall be
included in this definition except to the extent that any of such
trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under
any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v) all Capital
Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of
credit, acceptances or similar extensions of credit, (vii) all
Guarantees of such Person of the type of Indebtedness described
in clauses (i) through (vi) above, (viii) all Indebtedness of a
third party secured by any Lien on property owned by such Person,
whether or not such Indebtedness has been assumed by such Person,
(ix) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any
common stock of such Person, and (x) Off-Balance Sheet
Liabilities. The Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, except to the
extent that the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
"Indemnity and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially
in the form of Exhibit E, among the Borrower, the Subsidiary Loan
Parties and the Administrative Agent.
"Interest Period" shall mean (i) with respect to any
Eurodollar Borrowing, a period of 30, 60, 90 or 180 days and (ii)
with respect to a Swingline Loan, a period of one (1) day or such
other period of such duration as the Borrower may request and the
Swingline Lender may agree in accordance with Section 2.5;
provided, that:
(a) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest
Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period
expires;
(b) if any Interest Period would otherwise end on a day
other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day, unless, in the case of a
Eurodollar Borrowing, such Business Day falls in another calendar
month, in which case such Interest Period would end on the next
preceding Business Day;
(c) any Interest Period in respect of a Eurodollar
Borrowing which begins on the last Business Day of a calendar
month or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period
shall end on the last Business Day of such calendar month; and
(d) no Interest Period may extend beyond the Commitment
Termination Date or the Swingline Termination Date, as the case
may be.
"Lenders" shall have the meaning assigned to such term in
the opening paragraph of this Agreement and shall include, where
appropriate, the Swingline Lender.
"Letter of Credit" shall mean any standby letter of credit
(or at the Letter of Credit Issuer's discretion, any documentary
letter of credit) issued by the Letter of Credit Issuer pursuant
to Section 2.22 hereof, as it may be modified from time to time.
The term "Letter of Credit" shall not include any letters of
credit issued by an issuer, including any Lender, other than
pursuant to this Agreement.
"Letter of Credit Documents" shall mean such applications
and other agreements as the Letter of Credit Issuer may require
in connection with the issuance of a Letter of Credit, as they
may be modified from time to time.
"Letter of Credit Exposure" shall mean, with respect to each
Lender, the aggregate Available Amount of all outstanding Letters
of Credit as to which such Lender is obligated to make Revolving
Loan advances or to purchase a participation pursuant to Section
2.23.
"Letter of Credit Issuer" means Wachovia Bank, National
Association.
"Leverage Ratio" shall mean, as of any date of determination
with respect to the Borrower, the ratio of (i) Consolidated Total
Debt as of such date to (ii) Consolidated Total Capital as of
such date.
"LIBOR" shall mean, for any applicable Interest Period with
respect to any Eurodollar Loan, the rate per annum for deposits
in Dollars for a period equal to such Interest Period appearing
on the display designated as Page 3750 on the Dow Jones Markets
Service (or such other page on that service or such other service
designated by the British Banker's Association for the display of
such Association's Interest Settlement Rates for Dollar deposits)
as of 11:00 a.m. (London, England time) on the day that is two
(2) Business Days prior to the first day of the Interest Period
or if such Page 3750 is unavailable for any reason at such time,
the rate which appears on the Reuters Screen ISDA Page as of such
date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable
for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average
(rounded upward, if necessary, to the nearest 1/100th of 1%) of
the rates per annum at which deposits in Dollars are offered to
the Administrative Agent two (2) Business Days preceding the
first day of such Interest Period by leading banks in the London
interbank market as of 10:00 a.m. for delivery on the first day
of such Interest Period, for the number of days comprised therein
and in an amount comparable to the amount of the Eurodollar Loan
of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest,
lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement,
or other arrangement having the practical effect of the foregoing
or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention
agreement and any capital lease having the same economic effect
as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement,
the Notes, all Notices of Borrowing, all Letter of Credit
Notices, all Letter of Credit Documents, the Subsidiary Guarantee
Agreement, the Indemnity and Contribution Agreement, and any and
all other instruments, agreements, documents and writings
executed in connection with any of the foregoing, as they may be
modified from time to time.
"Loan Parties" shall mean the Borrower and the Subsidiary
Loan Parties.
"Loans" shall mean Base Rate Loans, Eurodollar Loans, LOC
Loans and/or Swingline Loans, or any of them, as the context
shall require.
"LOC Fee Payment Date" shall mean the last day of each
March, June, September and December and on the Commitment
Termination Date.
"LOC Loan" shall have the meaning set forth in Section 2.23.
"Material Adverse Effect" shall mean, with respect to any
event, act, condition or occurrence of whatever nature (including
any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether individually
or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse
effect on, (i) the business, results of operations, financial
condition, assets, liabilities or prospects of the Borrower and
of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (iii) the rights and
remedies of the Administrative Agent and the Lenders under any of
the Loan Documents or (iv) the legality, validity or
enforceability of any of the Loan Documents.
"Material Contract" shall mean (a) any contract or other
agreement, written or oral, of the Borrower or any of its
Subsidiaries involving monetary liability of or to any such
Person in an amount in excess of $1,000,000.00 in the aggregate
and (b) any other contract, agreement, permit or license, written
or oral, of the Borrower or any of its Subsidiaries the failure
to comply with which could reasonably be expected to have a
Material Adverse Effect.
"Material Indebtedness" shall mean Indebtedness (other than
the Loans) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the
Subsidiaries in an aggregate principal amount exceeding
$3,500,000.00. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect to any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary
would be required to pay if such Hedging Agreement were
terminated at such time.
"Material Subsidiary" shall mean at any time any direct or
indirect Subsidiary of the Borrower having: (a) assets in an
amount equal to at least five percent (5%) of the total assets of
the Borrower and its Subsidiaries determined on a consolidated
basis as of the last day of the most recent fiscal quarter of the
Borrower at such time; or (b) revenues or net income (losses) in
an amount equal to at least ten percent (10%) of the total
revenues or net income (losses) of the Borrower and its
Subsidiaries on a consolidated basis for the 12-month period
ending on the last day of the most recent fiscal quarter of the
Borrower at such time.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Revolving Credit Notes
and the Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices
of Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice
given by the Borrower to the Administrative Agent in respect of
the conversion or continuation of an outstanding Borrowing as
provided in Section 2.7(b) hereof.
"Notice of Revolving Borrowing" shall have the meaning as
set forth in Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning as
set forth in Section 2.5.
"Obligations" shall mean all amounts owing by the Borrower
to the Administrative Agent or any Lender (including the
Swingline Lender and the Letter of Credit Issuer) pursuant to or
in connection with this Agreement or any other Loan Document,
including without limitation, all principal, interest (including
any interest accruing after the filing of any petition in
bankruptcy or the commencement of any insolvency, reorganization
or like proceeding relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in
such proceeding), all reimbursement obligations under the Letter
of Credit Documents, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all
reasonable fees and expenses of counsel to the Administrative
Agent and any Lender (including the Swingline Lender) incurred
pursuant to this Agreement or any other Loan Document), whether
direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or
thereunder, together with all renewals, extensions, modifications
or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i)
any repurchase obligation or liability of such Person with
respect to accounts or notes receivable sold by such Person, (ii)
any liability of such Person under any sale and leaseback
transactions which do not create a liability on the balance sheet
of such Person, (iii) any liability of such Person under any so-
called "synthetic" lease transaction or (iv) any obligation
arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but
which does not constitute a liability on the balance sheet of
such Person.
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement or any other Loan
Document.
"Participant" shall have the meaning set forth in Section
10.4(c).
"Payment Office" shall mean the office of the Administrative
Agent located at Charlotte Plaza, CP-8, 201 South College Street,
Charlotte, North Carolina 28288-0608, Attention: Syndication
Agency Services, or such other location as to which the
Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity
performing similar functions.
"Permitted Encumbrances" shall mean
(a) Liens imposed by law for taxes not yet delinquent or
which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by
law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;
(e) judgment and attachment Liens not giving rise to an
Event of Default or Liens created by or existing from any
litigation or legal proceeding that are currently being contested
in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with
GAAP;
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising
in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value
of the affected property or materially interfere with the
ordinary conduct of business of the Borrower and its Subsidiaries
taken as a whole; and
(g) Liens arising under ERISA which could not reasonably be
expected to have a Material Adverse Effect;
provided, that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the
United States (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States), in each case maturing within one year from the date of
acquisition thereof;
(b) commercial paper having the highest rating, at the time
of acquisition thereof, of S&P or Moody's and in either case
maturing within six months from the date of acquisition thereof;
(c) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition
thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States or
any state thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000.00;
(d) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (i)
above and entered into with a financial institution satisfying
the criteria described in clause (iii) above; and
(e) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv)
above.
"Permitted Subordinated Debt" shall mean any Indebtedness of
the Borrower or any Subsidiary (i) that is expressly subordinated
to the Obligations on terms reasonably satisfactory to the
Administrative Agent, and (ii) that is evidenced by an indenture
or other similar agreement that is in a form reasonably
satisfactory to the Administrative Agent.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability
company, trust or other entity, or any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pro Rata Share" shall mean, with respect to any Lender at
any time, a percentage, the numerator of which shall be the sum
of such Lender's Revolving Commitment and the denominator of
which shall be the sum of all Lenders' Revolving Commitments; or
if the Revolving Commitments have been terminated or expired or
if the Loans have been declared to be due and payable, a
percentage, the numerator of which shall be the sum of such
Lender's Revolving Credit Exposure and the denominator of which
shall be the sum of the aggregate Revolving Credit Exposure of
all Lenders.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in
effect from time to time, and any successor regulations.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into the environment (including
ambient air, surface water, groundwater, land surface or
subsurface strata) or within any building, structure, facility or
fixture.
"Required Lenders" shall mean, at any time, Lenders holding
more than 51% of the aggregate outstanding Revolving Credit
Exposures at such time or if the Lenders have no Revolving Credit
Exposure outstanding, then Lenders holding more than 51% of the
Aggregate Revolving Commitments.
"Responsible Officer" shall mean any of the president, the
chief executive officer, the chief operating officer, the chief
financial officer, the treasurer or a vice president of the
Borrower or such other representative of the Borrower as may be
designated in writing by any one of the foregoing with the
consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer or the
treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth in
Section 7.5.
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to
or for the account of the Borrower and to participate in
Swingline Loans in an aggregate principal amount not exceeding
the amount set forth with respect to such Lender on the signature
pages to this Agreement, or in the case of a Person becoming a
Lender after the Closing Date, the amount of the assigned
"Revolving Commitment" as provided in the Assignment and
Acceptance Agreement executed by such Person as an assignee, as
the same may be changed pursuant to terms hereof.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of the outstanding principal amount
of such Lender's Revolving Loans plus such Lender's Swingline
Exposure plus such Lender's Letter of Credit Exposure.
"Revolving Credit Note" shall mean a promissory note of the
Borrower payable to the order of a Lender in the principal amount
of such Lender's Revolving Commitment, in substantially the form
of Exhibit A, as it may be modified from time to time.
"Revolving Loan" shall mean a loan made by a Lender (other
than the Swingline Lender) to the Borrower under its Revolving
Commitment, which may either be a Base Rate Loan or a Eurodollar
Loan.
"S&P" shall mean Standard & Poor's.
"SPE Subsidiary" shall mean a special purpose Subsidiary of
the Borrower established solely for the purpose of owning a
parcel of real property for permanent financing purposes.
"Subordinated Debt Documents" shall mean any indenture,
agreement or similar instrument governing any Permitted
Subordinated Debt.
"Subsidiary" shall mean, with respect to any Person (the
"parent"), any corporation, partnership, joint venture, limited
liability company, association or other entity the accounts of
which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity (i) of
which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned,
Controlled or held, or (ii) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the
parent. Unless otherwise indicated, all references to
"Subsidiary" hereunder shall mean a Subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit D
attached hereto, made by the Subsidiary Loan Parties in favor of
the Administrative Agent for the benefit of the Lenders.
"Subsidiary Loan Party" shall mean any Subsidiary that is
not a Foreign Subsidiary or a SPE Subsidiary.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding not to exceed
$5,000,000.00.
"Swingline Exposure" shall mean, with respect to each
Lender, the principal amount of the Swingline Loans in which such
Lender is legally obligated either to make a Base Rate Loan or to
purchase a participation in accordance with Section 2.5, which
shall equal such Lender's Pro Rata Share of all outstanding
Swingline Loans.
"Swingline Lender" shall mean Bank of America, or any other
Lender that may become a Swingline Lender by amendment to this
Agreement.
"Swingline Loan" shall mean a loan made to the Borrower by
the Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the
Borrower payable to the order of the Swingline Lender in the
principal amount of the Swingline Commitment, substantially the
form of Exhibit B, as it may be modified from time to time.
"Swingline Termination Date" shall mean the date that is one
(1) Business Day prior to the Commitment Termination Date.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"Type," when used in reference to a Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to
the LIBOR or the Base Rate.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classifications of Loans and Borrowings
For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g. a "Revolving Loan" or
"Swingline Loan") or by Type (e.g. a "Eurodollar Loan" or "Base
Rate Loan") or by Class and Type (e.g. "Revolving Eurodollar
Loan"). Borrowings also may be classified and referred to by
Class (e.g. "Revolving Borrowing") or by Type (e.g. "Eurodollar
Borrowing") or by Class and Type (e.g. "Revolving Eurodollar
Borrowing").
Section 1.3 Accounting Terms and Determination
Unless otherwise defined or specified herein, all
accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared,
in accordance with GAAP as in effect from time to time, applied
on a basis consistent (except for such changes approved by the
Borrower's independent public accountants) with the most recent
audited consolidated financial statement of the Borrower
delivered pursuant to Section 5.1(a); provided, that if the
Borrower notifies the Administrative Agent that the Borrower
wishes to amend any covenant in Article 6 to eliminate the effect
of any change in GAAP on the operation of such covenant (or if
the Administrative Agent notifies the Borrower that the Required
Lenders wish to amend Article 6 for such purpose), then the
Borrower's compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders.
Section 1.4 Terms Generally
The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including" and the word "to" means "to but excluding".
Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or
other document as it was originally executed or as it may from
time to time be amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any
Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and
"hereunder" and words
of similar import shall be construed to refer to this Agreement
as a whole and not to any particular provision hereof, (iv)
all references to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific
time shall be construed to refer to the time in the city and
state of the Administrative Agent's principal office, unless
otherwise indicated.
ARTICLE 2
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1 General Description of Facility
Subject to and upon the terms and conditions herein
set forth, (i) the Lenders hereby establish in favor of the
Borrower a revolving credit facility pursuant to which the
Lenders severally agree (to the extent of each Lender's Pro Rata
Share up to such Lender's Revolving Commitment) to make Revolving
Loans to the Borrower in accordance with Section 2.2, (ii) the
Swingline Lender agrees to make Swingline Loans in accordance
with Section 2.4, and (iii) the Letter of Credit Issuer agrees to
issue Letters of Credit in accordance with Section 2.22 hereof;
provided, that in no event shall the aggregate principal amount
of all outstanding Revolving Loans and Swingline Loans plus the
aggregate Available Amounts of all outstanding Letters of Credit
exceed at any time the Aggregate Revolving Commitments from time
to time in effect.
Section 2.2 Revolving Loans
Subject to the terms and conditions set forth
herein, each Lender severally agrees to make Revolving Loans to
or for the account of the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding
at any time that will not result in (a) such Lender's Revolving
Credit Exposure exceeding such Lender's Revolving Commitment or
(b) the sum of the aggregate Revolving Credit Exposures of all
Lenders exceeding the Aggregate Revolving Commitments. During
the Availability Period, the Borrower shall be entitled to
borrow, prepay and reborrow Revolving Loans in accordance with
the terms and conditions of this Agreement; provided, that the
Borrower may not borrow or reborrow should there exist a Default
or Event of Default.
Section 2.3 Procedure for Revolving Borrowings
The Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in
writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "Notice of Revolving Borrowing")
(x) prior to 11:00 a.m. one (1) Business Day prior to the
requested date of each Base Rate Borrowing and (y) prior to 11:00
a.m. three (3) Business Days prior to the requested date of each
Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be
irrevocable and shall specify: (i) the aggregate principal amount
of such Borrowing, (ii) the date of such Borrowing (which shall
be a Business Day), (iii) the Type of such Revolving Loan
comprising such Borrowing and (iv) in the case of a Eurodollar
Borrowing, the duration of the initial Interest Period applicable
thereto (subject to the provisions of the definition of Interest
Period). Each Revolving Borrowing shall consist entirely of Base
Rate Loans or Eurodollar Loans, as the Borrower may request. The
aggregate principal amount of each Eurodollar Borrowing or Base
Rate Borrowing shall be not less than $100,000.00 or a larger
multiple of $50,000.00; provided, that Base Rate Loans made
pursuant to Section 2.5 or Section 2.20(c) may be made in lesser
amounts as provided therein. At no time shall the total number
of Eurodollar Borrowings outstanding at any time exceed seven
(7). Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall
advise each Lender of the details thereof and the amount of such
Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
Section 2.4 Swingline Commitment
Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to
the Borrower, from time to time from the Closing Date to the
Swingline Termination Date, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the
Swingline Commitment then in effect and (ii) the difference
between the Aggregate Revolving Commitments and the aggregate
Revolving Credit Exposures of all Lenders; provided, that the
Swingline Lender shall not be required to make a Swingline Loan
to refinance an outstanding Swingline Loan. The Borrower shall
be entitled to borrow, repay and reborrow Swingline Loans in
accordance with the terms and conditions of this Agreement. The
Administrative Agent shall at all times assume that the Swingline
Commitment is fully funded unless otherwise agreed in writing
with the Swingline Lender.
Section 2.5 Procedure for Swingline Borrowing; Etc.
(a) The Borrower and the Swingline Lender shall establish
an autoborrow arrangement pursuant to which: (i) the Borrower
may request Swingline Borrowings by drawing checks on a
deposit account maintained with the Swingline Lender that is
linked to the Swingline Commitment in accordance with
disbursement arrangements that are mutually satisfactory to the
Borrower and the Swingline Lender; and (ii) funds held in such
account may be applied as payments under the Swingline Loans.
The Borrower shall not be required to provide written notice
(or telephonic notice promptly confirmed in writing) of each
Swingline Borrowing (a "Notice of Swingline Borrowing") to the
Administrative Agent. Each Swingline Loan shall accrue interest
at the Base Rate or LIBOR, plus the Applicable Margin, or such
other rate as agreed between the Borrower and the Swingline Lender.
Each Swingline Loan shall have an Interest Period (subject to
the definition thereof) as agreed between the Borrower and the
Swingline Lender. The aggregate principal amount of each Swingline
Loan shall not be less than $100,000.00 or a larger multiple of
$50,000.00, or such minimum amounts agreed to by the Swingline
Lender and the Borrower. The Swingline Lender will provide the
Administrative Agent with the following information: (i) on the
last day of each calendar quarter, the aggregate outstanding principal
amount of the Swingline Loans and (ii) promptly, on the same day of
request by the Administrative Agent, the current aggregate
outstanding principal amount of the Swingline Loans. The
Administrative Agent will notify the Lenders on a quarterly basis
if any Swingline Loans occurred during such quarter.
(b) The Swingline Lender, at any time and from time to time in
its sole discretion, may, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on
its behalf), give a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders (including the
Swingline Lender) to make Revolving Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender
will make the proceeds of its Revolving Loan included in such
Borrowing available to the Administrative Agent for the account
of the Swingline Lender in accordance with Section 2.6, which
will be used solely for the repayment of such Swingline Loan.
(c) If for any reason a Revolving Borrowing may not be (as
determined in the sole discretion of the Administrative Agent),
or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Swingline Lender) shall purchase an
undivided participating interest in such Swingline Loan in an
amount equal to its Pro Rata Share thereof on the date that such
Revolving Borrowing should have occurred. On the date of such
required purchase, each Lender shall promptly transfer, in
immediately available funds, the amount of its participating
interest to the Administrative Agent for the account of the
Swingline Lender.
(d) Each Lender's obligation to make a Revolving Loan pursuant
to Section 2.5(b) or to purchase the participating interests
pursuant to Section 2.5(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including without
limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have or
claim against the Swingline Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the existence of a Default
or an Event of Default or the termination of any Lender's
Revolving Commitment, (iii) the existence (or alleged existence)
of any event or condition which has had or could reasonably be
expected to have a Material Adverse Effect, (iv) any breach of
this Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing. If such amount is not in fact made available to
the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date
of demand thereof at the Federal Funds Rate. Until such time as
such Lender makes its required payment, the Swingline Lender
shall be deemed to continue to have outstanding Swingline Loans
in the amount of the unpaid participation for all purposes of the
Loan Documents. In addition, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on
its Loans and any other amounts due to it hereunder, to the
Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender
failed to fund pursuant to this Section, until such amount has
been purchased in full.
Section 2.6 Funding of Borrowings.
(a) Each Lender will make available each Loan to be made
by it hereunder on the proposed date thereof by wire transfer
in immediately available funds by 11:00 a.m. to the Administrative
Agent at the Payment Office; provided, that the Swingline Loans
will be made as set forth in Section 2.5. The Administrative
Agent will make such Loans available to the Borrower by promptly
crediting the amounts that it receives, in like funds by the
close of business on such proposed date, to an account maintained
by the Borrower with the Administrative Agent or at the
Borrower's option, by effecting a wire transfer of such amounts
to an account designated by the Borrower to the Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified
by any Lender prior to 5 p.m. one (1) Business Day prior to the date
of a Borrowing in which such Lender is participating that such
Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may
assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent,
in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together
with interest at the Federal Funds Rate for up to two (2) days
and thereafter at the rate specified for such Borrowing. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent
shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for such
Borrowing. Nothing in this subsection shall be deemed to relieve
any Lender from its obligation to fund its Pro Rata Share of any
Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such
Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be
responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make
its Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to make its Loans hereunder.
Section 2.7 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified
in the applicable Notice of Borrowing, and in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Notice of Borrowing. Thereafter, the Borrower
may elect to convert such Borrowing into a different Type or to
continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided
in this Section. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the
Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate
Borrowing. This Section shall NOT apply to Swingline Borrowings.
(b) To make an election pursuant to this Section, the
Borrower shall give the Administrative Agent prior written
notice (or telephonic notice promptly confirmed in writing)
of each Borrowing (a "Notice of Conversion/Continuation") that is
to be converted or continued, as the case may be, (x) prior to
10:00 a.m. one (1) Business Day prior to the requested date of
a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m.
three (3) Business Days prior to a continuation of or conversion
into a Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify
(i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect
to different portions thereof, the portions thereof that are to
be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv)
shall be specified for each resulting Borrowing); (ii) the
effective date of the election made pursuant to
such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a
Base Rate Borrowing or a Eurodollar Borrowing; and (iv) if the
resulting Borrowing is to be a Eurodollar Borrowing, the Interest
Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of
"Interest Period." If any such Notice of Continuation/Conversion
requests a Eurodollar Borrowing but does not specify an Interest
Period, the Borrower shall be deemed to have selected an Interest
Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of
any Eurodollar Borrowing, the Borrower shall have failed to
deliver a Notice of Conversion/Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be
deemed to have elected to convert such Borrowing to a Base Rate
Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists,
unless the Administrative Agent and each of the Lenders shall
have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the
Interest Period in respect thereof. Any Borrowing for which the
Borrower has not made an election, including Borrowings made on
the Borrower's behalf pursuant to Section 2.5(b) or Section
2.23(b), shall be a Base Rate Borrowing.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the
details thereof and of such Lender's portion of each resulting
Borrowing.
Section 2.8 Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Commitment Termination Date, except that
the Swingline Commitment shall terminate on the Swingline
Termination Date.
(b) Upon at least three (3) Business Days prior written notice
(or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the
Borrower may reduce the Aggregate Revolving Commitments in part
or terminate the Aggregate Revolving Commitments in whole;
provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each
Lender, (ii) any partial reduction pursuant to this Section 2.8
shall be in an amount of at least $1,000,000.00 and any larger
multiple of $500,000.00, and (iii) no such reduction shall be
permitted which would reduce the Aggregate Revolving Commitments
to an amount less than the outstanding Revolving Credit Exposures
of all Lenders. Any such reduction in the Aggregate Revolving
Commitments shall result in a proportionate reduction (rounded to
the next lowest integral multiple of $100,000.00) in the
Swingline Commitment.
Section 2.9 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid
interest thereon) on the Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued interest thereon) on the
earlier of (i) the last day of the Interest Period applicable to
such Borrowing and (ii) the Swingline Termination Date.
Section 2.10 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Lender from time to
time under this Agreement. The Administrative Agent shall
maintain appropriate records in which shall be recorded (i) the
Revolving Commitment of each Lender, (ii) the amount of each Loan
made hereunder by each Lender, the Class and Type thereof and the
Interest Period applicable thereto, (iii) the date of each
continuation thereof pursuant to Section 2.7, (iv) the date of
each conversion of all or a portion thereof to another Type
pursuant to Section 2.7, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of such Loans, (vi)
the date, stated amount, Available Amount and expiration or
termination of each outstanding Letter of Credit, and (vii) both
the date and amount of any sum received by the Administrative
Agent hereunder from the Borrower in respect of the Loans and
each Lender's Pro Rata Share thereof. The entries made in such
records shall be prima facie evidence of the existence and
amounts of the obligations of the Borrower therein recorded;
provided, that the failure or delay of any Lender or the
Administrative Agent in maintaining or making entries into any
such record or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans (both principal
and unpaid accrued interest) of such Lender in accordance with
the terms of this Agreement.
(b) The Borrower agrees that it will execute and deliver to
each Lender a Revolving Credit Note, and, in the case of the Swingline
Lender only, a Swingline Note, payable to the order of such
Lender. Each Lender hereby appoints the Administrative Agent as
its agent for accepting delivery of Note(s) payable to such
Lender.
Section 2.11 Optional Prepayments
The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part,
without premium or penalty, by giving irrevocable written notice
(or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment
of any Eurodollar Borrowing, 11:00 a.m. not less than three (3)
Business Days prior to any such prepayment, (ii) in the case of
any prepayment of any Base Rate Borrowing, not less than one (1)
Business Day prior to the date of such prepayment, and (iii) in
the case of Swingline Borrowings, prior to 11:00 a.m. on the date
of such prepayment; provided, however, that any prepayment of
Eurodollar Borrowings shall be in a minimum amount of
$1,000,000.00 and any larger multiple of $500,000.00 and any
prepayment of Base Rate Borrowings shall be in a minimum amount
of $500,000.00 and larger multiples of $100,000.00.
Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of
each Borrowing or portion thereof to be prepaid. Upon receipt of
any such notice, the Administrative Agent shall promptly notify
each affected Lender of the contents thereof and of such Lender's
Pro Rata Share of any such prepayment. If such notice is
given, the aggregate amount specified in such notice shall
be due and payable on the date designated in such notice,
together with accrued interest to such date on the amount
so prepaid in accordance with Section 2.12(d); provided, that
if a Eurodollar Borrowing is prepaid on a date other than the
last day of an Interest Period applicable thereto, the Borrower
shall also pay all amounts required pursuant to Section 2.18.
Each partial prepayment of any Loan (other than a Swingline Loan)
shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type pursuant to
Section 2.3 or in the case of a Swingline Loan pursuant to
Section 2.5. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
Section 2.12 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar
Loan at LIBOR for the applicable Interest Period in effect for
such Loan, plus, in each case, the Applicable Margin in effect
from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at
(i) the Base Rate in effect from time to time or (ii) LIBOR in
effect from time to time, plus, in each case, the Applicable
Margin in effect from time to time; or any other interest rate as
agreed between the Borrower and the Swingline Lender.
(c) While an Event of Default exists or after acceleration, at
the option of the Required Lenders, the Borrower shall pay
interest ("Default Interest") with respect to all Eurodollar
Loans at the rate otherwise applicable for the then-current
Interest Period plus an additional 2% per annum until the last
day of such Interest Period, and thereafter, and with respect to
all Base Rate Loans (including all Swingline Loans) and all other
Obligations hereunder (other than Loans), at an all-in rate in
effect for Base Rate Loans, plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue
from and including the date such Loans are made to but excluding
the date of any repayment thereof. Interest on all outstanding
Base Rate Loans shall be payable quarterly in arrears on the last
day of each March, June, September and December and on the
Commitment Termination Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each
Interest Period applicable thereto, and, in the case of any
Eurodollar Loans having an Interest Period in excess of 90 days,
on each day which occurs every 90 days, after the initial date of
such Interest Period, and on the Commitment Termination Date. If
not previously paid, interest on each Swingline Loan shall be
payable on the Commitment Termination Date of such Loan, which
shall be the last day of the Interest Period applicable thereto,
and on the Swingline Termination Date. Interest on any Loan
which is converted into a Loan of another Type or which is repaid
or prepaid shall be payable on the date of such conversion or on
the date of any such repayment or
prepayment (on the amount repaid or prepaid) thereof. All
Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by
telephone, promptly confirmed in writing). Any such
determination shall be conclusive and binding for all purposes,
absent manifest error.
Section 2.13 Fees.
(a) Intentionally omitted.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment
fee, which shall accrue at the Applicable Margin (determined
daily) on the daily amount of the unused Revolving Loan portion
of the Revolving Commitment of such Lender during the
Availability Period; provided, that if such Lender continues to
have any Revolving Credit Exposure after the commitment
Termination Date, then the commitment fee shall continue to
accrue on the amount of such Lender's unused Revolving Loan
portion of the Revolving Commitment from and after the Commitment
Termination Date to the date that all of such Lender's Revolving
Credit Exposure has been paid in full. The Borrower agrees to
pay to the Swingline Lender for the account of each Lender a
commitment fee, which shall accrue at the Applicable Margin
(determined daily) on the daily amount of the unused Swingline
Loan portion of the Revolving Commitment of such Lender during
the Availability Period; provided, that if such Lender continues
to have any Revolving Credit Exposure after the Commitment
Termination Date, then the commitment fee shall continue to
accrue on the amount of such Lender's unused Swingline Loan
portion of the Revolving commitment from and after the Commitment
Termination Date to the date that all such Lender's Revolving
Credit Exposure has been paid in full. Accrued commitment fees
shall be payable quarterly, in arrears on the last day of each
March, June, September and December of each year and on the
Commitment Termination Date, commencing on the first such date
after the Closing Date; provided further, that any commitment
fees accruing after the Commitment Termination Date shall be
payable on demand. For purposes of computing commitment fees
with respect to the Revolving Commitments, the Revolving
Commitment of each Lender shall be deemed used to the extent of
the outstanding Revolving Loans and Swingline Loans of such
Lender.
(c) Upfront Fee. The Borrower shall pay to the Administrative
Agent, for the ratable benefit of each Lender, a one-time upfront
fee equal to .0020 multiplied by the Aggregate Revolving
Commitments. The upfront fee shall be due and payable on the
Closing Date.
(d) Letter of Credit Fee. On each LOC Fee Payment Date, the
Borrower shall pay, in arrears, to the Administrative Agent for
the ratable benefit of each Lender, a Letter of Credit fee for
each Letter of Credit equal to (i) the average daily outstanding
Available Amount of such Letter of Credit since the most recent
LOC Fee Payment Date (or the date of issuance if later) times
(ii) the Applicable Margin for LIBOR on a per annum basis. In
addition to the Letter of Credit fees payable to the
Administrative Agent, the Letter of Credit Issuer may charge for
its
own account, fees for drawings, transfers, amendments and
other fees and charges as may be required under the Letter of
Credit Documents.
Section 2.14 Computation of Interest and Fees
All computations of interest and fees hereunder
shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are
payable (to the extent computed on the basis of days elapsed)
except that Letter of Credit Fees shall be calculated in
accordance with the Letter of Credit Documents. Each
determination by the Administrative Agent of an interest amount
or fee hereunder shall be made in good faith and, except for
manifest error, shall be final, conclusive and binding for all
purposes.
Section 2.15 Inability to Determine Interest Rates
If prior to the commencement of any Interest Period
for any Eurodollar Borrowing,
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant interbank
market, adequate means do not exist for ascertaining LIBOR for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the LIBOR does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be)
of making, funding or maintaining their (or its, as the case may
be) Eurodollar Loans for such Interest Period, the Administrative
Agent shall give written notice (or telephonic notice, promptly
confirmed in writing) to the Borrower and to the Lenders as soon
as practicable thereafter. In the case of Eurodollar Loans,
until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances giving rise to such notice no
longer exist, (i) the obligations of the Lenders to make
Eurodollar Revolving Loans or to continue or convert outstanding
Loans as or into Eurodollar Loans shall be suspended and (ii)
all such affected Loans shall be converted into Base Rate Loans
on the last day of the then current Interest Period applicable
thereto unless the Borrower prepays such Loans in
accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one (1) Business Day before the
date of any Eurodollar Revolving Borrowing for which a Notice of
Revolving Borrowing has previously been given that it elects not
to borrow on such date, then such Revolving Borrowing shall be
made as a Base Rate Borrowing.
Section 2.16 Illegality
If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any
Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly
give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of such Lender to
make Eurodollar Revolving Loans, or to continue or convert
outstanding Loans as or into Eurodollar Loans, shall be suspended.
In the case of the making of a Eurodollar Revolving Borrowing,
such Lender's Revolving Loan shall be made as a Base Rate Loan as
part of the same Revolving Borrowing for the same Interest Period
and if the affected Eurodollar Loan is then outstanding, such Loan
shall be converted to a Base Rate Loan either (i) on the last day
of the then current Interest Period applicable to such Eurodollar
Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine
that it may not lawfully continue to maintain such Eurodollar
Loan to such date. Notwithstanding the foregoing, the affected
Lender shall, prior to giving such notice to the Administrative
Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if
such designation would not otherwise be disadvantageous to such
Lender in the good faith exercise of its discretion.
Section 2.17 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit, capital adequacy or similar requirement that is not
otherwise included in the determination of LIBOR hereunder
against assets of, deposits with or for the account of, or credit
extended by, any Lender; or
(ii) impose on any Lender or the Eurodollar interbank market
any other condition affecting this Agreement or any Eurodollar Loans
made by such Lender;
and the result of the foregoing is to increase the cost to such
Lender of making, converting into, continuing or maintaining a
Eurodollar Loan or to reduce the amount received or receivable by
such Lender hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written
notice from and demand by such Lender on the Borrower (with a
copy of such notice and demand to the Administrative Agent), to
the Administrative Agent for the account of such Lender, within
five (5) Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender
for such additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that on or after the
date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of
return on such Lender's capital (or on the capital of such
Lender's parent corporation) as a consequence of its obligations
hereunder to a level below that which such Lender or such
Lender's parent corporation could have achieved but for such
Change in Law (taking into consideration such Lender's policies
or the policies of such Lender's parent corporation with respect
to capital adequacy) then, from time to time, within five (5)
Business Days after receipt by the Borrower of written demand by
such Lender (with a copy thereof to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as
will compensate such Lender or such Lender's parent corporation
for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or such Lender's
parent corporation, as the case may be, specified in
paragraph (a) or (b) of this Section shall be delivered to the
Borrower (with a copy to the Administrative Agent) and
shall be conclusive, absent manifest error. The Borrower shall
pay any such Lender such amount or amounts within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation.
Section 2.18 Funding Indemnity
In the event of (a) the payment of any principal of
a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan
other than on the last day of the Interest Period applicable
thereto or (c) the failure by the Borrower to borrow, prepay,
convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is
withdrawn or revoked), in any such event, the Borrower shall
compensate each Lender, within five (5) Business Days after
written demand from such Lender, for any loss, cost or expense
attributable to such event. In the case of a Eurodollar Loan,
such loss, cost or expense shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (A) the
amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at
LIBOR applicable to such Eurodollar Loan for the period from the
date of such event to the last day of the then current Interest
Period therefor (or in the case of a failure to borrow, convert
or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest
that would accrue on the principal amount of such Eurodollar Loan
for the same period if LIBOR were set on the date such Eurodollar
Loan was prepaid or converted or the date on which the Borrower
failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this
Section 2.18 submitted to the Borrower by any Lender shall be
conclusive, absent manifest error.
Section 2.19 Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative
Agent and any Lender shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable
law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within five (5) Business Days after written demand
therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative
Agent or such Lender, as the case may be, on or with respect
to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or
by the Administrative Agent on its own behalf or on behalf of a
Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in
which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Without limiting the
generality of the foregoing, each Foreign Lender agrees that it
will deliver to the Administrative Agent and the Borrower (or in
the case of a Participant, to the Lender from which the related
participation shall have been purchased) (i) two (2) duly
completed copies of Internal Revenue Service Form 1001 or 4224,
or any successor form thereto, as the case may be, certifying in
each case that such Foreign Lender is entitled to receive
payments made by the Borrower hereunder and under the Notes
payable to it, without deduction or withholding of any United
States federal income taxes and (ii) a duly completed Internal
Revenue Service Form W-8 or W-9, or any successor form thereto,
as the case may be, to establish an exemption from United State
backup withholding tax. Each such Foreign Lender shall deliver
to the Borrower and the Administrative Agent such forms on or
before the date that it becomes a party to this Agreement (or in
the case of a Participant, on or before the date such Participant
purchases the related participation). In addition, each such
Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Lender. Each
such Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no
longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose).
Section 2.20 Payments Generally; Pro Rata Treatment; Sharing of
Set-Offs.
(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees, or of amounts
payable under Section 2.17, Section 2.18 or Section 2.19, or
otherwise) prior to 11:00 a.m., Charlotte, North Carolina time,
on the date when due, in immediately available funds, without set-
off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office,
except payments to be made directly to the Swingline Lender or
Letter of Credit Issuer as expressly provided herein and except
that payments pursuant to Section 2.17, Section 2.18, Section
2.19, Section 2.24 and Section 10.3 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of
any payment accruing interest, interest thereon shall be made
payable for the period of such extension. All payments hereunder
shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall
be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans or
Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its
Revolving Loans and Swingline Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and Swingline
Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Revolving Loans and
Swingline Loans; provided, that (i) if any such participations
are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall
not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its
Loans or Swingline Loans to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as
to which the provisions of this paragraph shall apply). The
Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if
such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders
hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders the
amount or amounts due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders, severally agrees
to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for
each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent,
at the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.5(b) or Section 2.5(c), Section
2.6(b), Section 2.20(d), Section 2.23 or Section 10.3(d), then
the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
Section 2.21 Mitigation of Obligations
If any Lender requests compensation under Section
2.17, or if the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.19, then such Lender shall use
reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or
affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts
payable under Section 2.17 or Section 2.19, as the case may be,
in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to
pay all costs and expenses incurred by any Lender in connection
with such designation or assignment.
Section 2.22 Letter of Credit Commitment
Subject to the terms and conditions set forth herein
and provided no Default exists, the Letter of Credit Issuer
agrees to issue Letters of Credit from time to time during the
Availability Period; provided, however, that (a) no Letter of
Credit shall have a stated expiration date later than five (5)
Business Days prior to the Commitment Termination Date, as it may
be extended, (b) the aggregate Available Amount of all Letters of
Credit outstanding at any time shall not exceed the lesser of (i)
$10,000,000 and (ii) the difference between the Aggregate
Revolving Commitments and the aggregate Revolving Credit
Exposures of all Lenders.
Section 2.23 Procedure for Issuance and Reimbursement of
Letters of Credit.
(a) The Borrower shall give the Letter of Credit Issuer and the
Administrative Agent a written request for the issuance of a
Letter of Credit, and shall provide to the Letter of Credit
Issuer such Letter of Credit Documents as it may require. The
Administrative Agent shall notify the Lenders on a quarterly
basis of the issuance of any Letters of Credit during the
preceding quarter and the outstanding Available Amount of all
outstanding Letters of Credit as of the end of such quarter.
(b) Should there occur any drawing under a Letter of Credit, the
Letter of Credit Issuer shall give immediate written notice
thereof to the Administrative Agent setting forth the amount and
date of such drawing (the "Notice of Drawing"), which Notice of
Drawing shall constitute a Notice of Revolving Borrowing from the
Borrower (which the Borrower hereby irrevocably authorizes)
requesting the Lenders (including the Letter of Credit Issuer) to
make Revolving Loans on the date of such drawing in an amount
equal to the amount of such drawing. Each Lender shall make
proceeds of its Revolving Loan included in such Borrowing
available to the Administrative Agent for the account of the
Letter of Credit Issuer in accordance with Section 2.6, which
proceeds shall be used exclusively for the reimbursement of such
drawing.
(c) If for any reason, a Revolving Loan may not be (as
determined in the sole discretion of the Administrative Agent) or
is not, made in accordance with the provisions of Subsection (b)
above, then the Letter of Credit Issuer shall be considered to
have made a loan (the "LOC Loan") to the Borrower in the amount
of such drawing and each Lender (other than the Letter of Credit
Issuer) shall purchase an undivided participating interest in the
amount of such LOC Loan in an amount equal to its Pro Rata Share
thereof on the date that such Revolving Borrowing should have
occurred. On the date of such required purchase, each Lender
shall promptly transfer, in immediately available funds, the
amount of its participating interest in the LOC Loan to the
Administrative Agent for the account of the Letter of Credit
Issuer. The LOC Loan shall be payable on demand, shall be a Base
Rate Loan, and shall be an Obligation hereunder.
(d) Each Lender's obligation to make a Revolving Loan pursuant
to Section 2.23(b) or to purchase the participating interests
pursuant to Section 2.23(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including without
limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have or
claim against the Letter of Credit Issuer, the Borrower or any
other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of any Lender's
Revolving Commitment, (iii) the existence (or alleged existence)
of any event or condition which has had or could reasonably be
expected to have a Material Adverse Effect, (iv) any breach of
this Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing. If such amount is not in fact made available to
the Letter of Credit Issuer by any Lender, the Letter of Credit
Issuer shall be entitled to recover such amount on demand from
such Lender, together with accrued interest thereon for each day
from the date of demand thereof at the Federal Funds Rate. Until
such time as such Lender makes its required payment, the Letter
of Credit Issuer shall be deemed to continue to have an
outstanding LOC Loan in the amount of the unpaid participation
for all purposes of the Loan Documents. In addition, such Lender
shall be deemed to have assigned any and all payments made of
principal and interest on its Loans and any other amounts due to
it hereunder, to the Letter of Credit Issuer to fund the amount
of such Lender's participation interest in such LOC Loan that
such Lender failed to fund pursuant to this Section, until such
amount has been purchased in full.
(e) Each Lender acknowledges that other persons, including the
Letter of Credit Issuer and/or other Lenders, may issue letters
of credit outside the provisions of this Agreement for the
account of the Borrower, as permitted by Section 7.1(f), which
letters of credit
shall not be considered Letters of Credit issued pursuant to
this Agreement. Any letter of credit issued by the Letter of Credit
Issuer shall be considered to be a Letter of Credit issued
pursuant to this Agreement if the Letter of Credit Fee is paid
ratably to the Lenders, as provided in Section 2.13(d).
Section 2.24 Increased Cost.
(a) If a Change of Law or compliance by any Lender with any
request or directive (whether or not having the force of law) of
any Governmental Authority either: (i) shall subject such Lender
to any tax, duty or other charge with respect to any Letter of
Credit or its obligations hereunder or under any Letter of Credit
Documents, or (ii) shall impose, modify or deem applicable any
reserve, special deposit insurance or similar requirement
(including, without limitation, any such requirements imposed by
the Board of Governors of the Federal Reserve System) against
assets of, deposits with or for the account of, or credit
extended by, such Lender or its parent; or (iii) shall impose on
such Lender or its parent any other similar condition relating to
the Letter of Credit or its obligations hereunder or under any
Letter of Credit Documents; and the result of any of the
foregoing is to increase the cost to such Lender or its parent of
making or maintaining the Letter of Credit or its obligations
hereunder or under any Letter of Credit Documents, or to reduce
the amount received or receivable by such Lender or its parent
under this Agreement, under the Letter of Credit or hereunder or
under the other Loan Documents with respect thereto, by an amount
deemed by such Lender to be material, such Lender shall notify
the Administrative Agent in writing describing such circumstances
and the amount needed to compensate such Lender or its parent and
the Administrative Agent shall promptly deliver a copy of such
notice and a demand for payment to the Borrower. Within ten (10)
days after demand by the Administrative Agent, Borrower shall pay
to the Administrative Agent for the account of such Lender, such
additional amount or amounts as will compensate such Lender or
its parent for such increased cost or reduction.
(b) If any Lender shall have determined that a Change of Law or
compliance by such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any
Authority, has or would have the effect of reducing the rate of
return on such Lender's (or its parent's) capital as a
consequence of the issuance or continuance of any Letter of
Credit or its ability to make Loans or LOC Loans upon the
occurrence of draws under any Letter of Credit (taking into
consideration such Lender's (or its parent's) policies with
respect to capital adequacy), by an amount deemed by such Lender
to be material, then from time to time, such Lender shall notify
the Administrative Agent in writing describing such circumstances
and the amount needed to compensate such Lender or its parent and
the Administrative Agent shall promptly deliver a copy of such
notice and a demand for payment to the Borrower. Within ten (10)
days after demand by the Administrative Agent, Borrower shall pay
to the Administrative Agent such additional amount or amounts as
will compensate such Lender (or its parent's) for such reduction.
(c) In determining amounts owing pursuant to Subsections (a)
and (b), Lender may use any reasonable averaging, allocation
and attribution methods.
Section 2.25 Obligations Absolute
The obligations of Borrower under the Letter of
Credit Documents and this Agreement with respect to reimbursement
for drawings under Letters of Credit shall be absolute,
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and the Letter of
Credit Documents, under all circumstances whatsoever, including,
without limitation, the following circumstances:
(a) any lack of validity or enforceability of the Letter of
Credit, any of the Loan Documents or any other agreement or
instrument related thereto;
(b) any amendment or waiver of or any consent to departure from
the terms of the Letter of Credit, any of the Loan Documents or
any other agreement or instrument related thereto;
(c) the existence of any claim, setoff, defense or other right
which Borrower may have at any time against the Letter of Credit
Issuer, any beneficiary or any transferee of the Letter of Credit
(or any Person for whom the Letter of Credit Issuer, any such
beneficiary or any such transferee may be acting), any Lender,
the Administrative Agent or any other Person, whether in
connection with this Agreement, the Loan Documents, the Letter of
Credit, or any unrelated transaction;
(d) any statement, draft or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect, or any statement therein being
untrue or inaccurate in any respect whatsoever; or
(e) the surrender or impairment of any security for the
performance or observance of any of the terms of this Agreement,
or any of the other Loan Documents.
Section 2.26 Letter of Credit Documents
The obligations of the Borrower and rights of the
Letter of Credit Issuer herein with respect to Letters of Credit
shall be in addition to the obligations of the Borrower and
rights of the Letter of Credit Issuer under the Letter of Credit
Documents.
ARTICLE 3
CONDITIONS PRECEDENT TO LOANS
Section 3.1 Conditions To Effectiveness
The obligations of the Lenders (including the
Swingline Lender) to make Loans and/or issue Letters of Credit
hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance
with Section 10.2.
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel
to the
Administrative Agent) required to be reimbursed or paid by
the Borrower hereunder, under any other Loan Document and
under any agreement with the Administrative Agent.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on
behalf of each party thereto or written evidence satisfactory
to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement;
(ii) duly executed Notes payable to such Lender;
(iii) a duly executed Subsidiary Guarantee Agreement
and Indemnity and Contribution Agreement;
(iv) a certificate of the Secretary or Assistant Secretary
of each Loan Party in the form of Exhibit 3.1(b)(iv), attaching
and certifying copies of its bylaws and of the resolutions of
its boards of directors, authorizing the execution, delivery
and performance of the Loan Documents to which it is a party
and certifying the name, title and true signature of each officer
of such Loan Party executing the Loan Documents to which it
is a party;
(v) certified copies of the articles of incorporation or
other charter documents of each Loan Party, together with
certificates of good standing or existence from the Secretary of
State of the jurisdiction of incorporation of such Loan Party and
each other jurisdiction where such Loan Party is required to be
qualified to do business as a foreign corporation;
(vi) a favorable written opinion of counsel to the Loan
Parties, addressed to the Administrative Agent and each of the
Lenders, and covering such matters relating to the Loan Parties,
the Loan Documents and the transactions contemplated therein
as the Administrative Agent or the Required Lenders shall reasonably
request;
(vii) a certificate in the form of Exhibit 3.1(b)(vii),
dated the Closing Date and signed by a Responsible Officer,
confirming compliance with the conditions set forth in paragraphs
(a), (b) and (c) of Section 3.2;
(viii) duly executed Notices of Borrowing, Letter of Credit
Notices and Letter of Credit Documents, if applicable;
(ix) a duly executed Closing Statement and Disbursement
Agreement;
(x) certified copies of all consents, approvals,
authorizations, registrations or filings, if any, required to be
made or obtained by each Loan Party in connection with the Loans;
and
(xi) all other documents deemed reasonably necessary by the
Administrative Agent.
(c) Nothing has come to the attention of the Administrative
Agent or any Lender regarding (i) pending or threatened
litigation involving the Borrower or any Subsidiary or (ii)
compliance by the Borrower and each Subsidiary with
environmental, OSHA and other public health, safety or welfare
laws and regulations, employee benefit plans or insurance
coverages that would be reasonably likely to have a Material
Adverse Effect.
Section 3.2 Each Credit Event
The obligation of each Lender to make a Loan or
issue a Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to
such Borrowing or issuance of a Letter of Credit, no Default or
Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all
material respects on and as of the date of such Borrowing or
issuance of a Letter of Credit, in each case before and after
giving effect thereto;
(c) since the date of the most recent financial statements of
the Borrower described in Section 5.1(a), there shall have been
no change which has had or could reasonably be expected to have a
Material Adverse Effect;
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably
request, all in form and substance reasonably satisfactory to the
Administrative Agent or the Required Lenders; and
(e) with respect to each issuance of a Letter of Credit, the
LOC Issuer shall have received all LOC Documents it may require.
Each Borrowing or issuance of a Letter of Credit shall be
deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
Section 3.3 Delivery of Documents
All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this
Article 3, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and,
except for the Notes, in sufficient counterparts or copies for
each of the Lenders and shall be in form and substance
satisfactory in all respects to the Administrative Agent.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative
Agent and each Lender as follows:
Section 4.1 Existence; Power
The Borrower and each of the Guarantors (i) is duly
organized, validly existing and in good standing as a corporation
under the laws of the jurisdiction of its organization, (ii) has
all requisite power and authority to carry on its business as now
conducted, and (iii) is duly qualified to do business, and is in
good standing, in each jurisdiction where such qualification is
required, except where a failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.2 Organizational Power; Authorization
The execution, delivery and performance by each Loan
Party of the Loan Documents to which it is a party are within
such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required,
stockholder action. This Agreement has been duly executed and
delivered by the Borrower, and constitutes, and each other Loan
Document to which any Loan Party is a party, when executed and
delivered by such Loan Party, will constitute, valid and binding
obligations of the Borrower or such Loan Party (as the case may
be), enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting
the enforcement of creditors' rights generally and by general
principles of equity.
Section 4.3 Governmental Approvals; No Conflicts
The execution, delivery and performance by the
Borrower of this Agreement, and by each Loan Party of the other
Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any
action by, any Governmental Authority, except those as have been
obtained or made and are in full force and effect or where the
failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (b)
will not violate any applicable law or regulation or the charter,
bylaws or other organizational documents of the Borrower or any
of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under any indenture,
material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of their assets or
give rise to a right thereunder to require any payment to be made
by the Borrower or any of its Subsidiaries and (d) will not
result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries, except Liens (if any)
created under the Loan Documents.
Section 4.4 Financial Statements
The Borrower has furnished to each Lender the
audited consolidated balance sheet of the Borrower and its
Subsidiaries as of September 30, 2003 and the related
consolidated statements of income, shareholders' equity and cash
flows for the fiscal year then ended and interim financial
statements for each fiscal quarter through the fiscal quarter
ended June 30, 2004. Such financial statements fairly present
the consolidated financial condition of the Borrower and its
Subsidiaries as of such dates and the consolidated results of
operations for such periods in conformity with GAAP consistently
applied, subject, in the case of interim statements, to year end
audit adjustments and the absence of footnotes. Since the date
of the unaudited
financial statements described above, there have
been no changes with respect to the Borrower and its Subsidiaries
which have had or could reasonably be expected to have, singly or
in the aggregate, a Material Adverse Effect.
Section 4.5 Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to
the knowledge of the Borrower, threatened against or affecting
the Borrower or any of its Subsidiaries (i) as to which there is
a reasonable possibility of an adverse determination that could
reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect or (ii) which in any manner
draws into question the validity or enforceability of this
Agreement or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5, neither
the Borrower nor any of its Subsidiaries (i) to the best of its
actual knowledge, has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) to the
best of its actual knowledge, has become subject to any
Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
Section 4.6 Compliance with Laws and Agreements
To the best of its actual knowledge, the Borrower
and each Subsidiary is in compliance with (a) all applicable
laws, rules, regulations and orders of any Governmental
Authority, and (b) all indentures, agreements or other
instruments binding upon it or its properties, except where non-
compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.7 Investment Company Act, Etc.
Neither the Borrower nor any of its Subsidiaries is
(a) an "investment company," as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended,
(b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended
or (c) otherwise subject to any other regulatory scheme limiting
its ability to incur debt.
Section 4.8 Taxes
The Borrower and its Subsidiaries and each other
Person for whose taxes the Borrower or any Subsidiary could
become liable have timely filed or caused to be filed all Federal
income tax returns and all other material tax returns that are
required to be filed by them, and have paid all taxes shown to be
due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental
Authority, except (i) to the extent the failure to do so would
not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the
case may be, has set aside on its books adequate reserves. The
charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of such taxes are
adequate, and no tax liabilities that could be materially in excess
of the amount so provided are anticipated.
Section 4.9 Margin Regulations
None of the proceeds of any of the Loans will be
used for "purchasing" or "carrying" any "margin stock" with the
respective meanings of each of such terms under Regulation U as
now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin
Regulations.
Section 4.10 ERISA
No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur,
could reasonably be expected to result in a Material Adverse
Effect. The present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of
Statement of Financial Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of
Statement of Financial Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of all such
underfunded Plans.
Section 4.11 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title
to, or valid leasehold interests in, all of its real and
personal property material to the operation of its business.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents,
trademarks, service marks, trade names, copyrights and other
intellectual property material to its business, and the use
thereof by the Borrower and its Subsidiaries does not infringe on
the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not have a Material
Adverse Effect.
Section 4.12 Disclosure
The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to
which the Borrower or any of its Subsidiaries is subject, and all
other matters known to any of them, that, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect. None of the reports (including without
limitation all reports that the Borrower is required to file with
the Securities and Exchange Commission), financial statements,
certificates or other information furnished by or on behalf of
the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement
or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by any other information so
furnished) contain any material misstatement of fact or omits to
state any material fact necessary to make the statements therein,
taken as a whole, in light of the circumstances under which they
were made, not misleading.
Section 4.13 Labor Relations
There are no strikes, lockouts or other material
labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against
or affecting the Borrower or any of its Subsidiaries, and no
significant unfair labor practice, charges or grievances are
pending against the Borrower or any of its Subsidiaries, or to
the Borrower's knowledge, threatened against any of them before
any Governmental Authority. All payments due from the Borrower
or any of its Subsidiaries pursuant to the provisions of any
collective bargaining agreement have been paid or accrued as a
liability on the books of the Borrower or any such Subsidiary,
except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
Section 4.14 Subsidiaries
Schedule 4.14 sets forth the name of, the ownership
interest of the Borrower in, the jurisdiction of incorporation
of, and the type of, each Subsidiary and identifies each
Subsidiary that is a Subsidiary Loan Party, in each case as of
the Closing Date.
Section 4.15 Legal Name
The exact legal name of the Borrower, including
spelling and punctuation, as such name appears in its articles of
incorporation, is as set forth in the preamble hereof. The
Borrower's state issued organizational identification number is
M90326.
Section 4.16 No Restrictions on Dividends
There are no restrictions on dividends or repayment
of intercompany loans in any agreements of any Subsidiary Loan
Party.
Section 4.17 Solvency
The fair saleable value of the Borrower's assets,
measured on a going concern basis, exceeds all probable
liabilities, including those to be incurred pursuant to this
Agreement. Neither the Borrower nor any Subsidiary has incurred,
or believes that it will incur after giving effect to the
transactions contemplated by this Agreement, debts beyond its
ability to pay such debts as they become due.
Section 4.18 Insurance
The property and liability insurance maintained by
the Borrower and its Subsidiaries on and as of the date hereof
complies in all respects with the requirements set forth in
Section 5.8. All such insurance policies are in full force and
effect. All premiums (if any) due on such insurance policies or
renewals thereof have been paid and there is no default under any
of such insurance policies. Neither the Borrower nor its
Subsidiaries have received any notice or other communication from
any issuer of such insurance policies canceling or materially
amending any such insurance policies, any deductibles or retained
amounts thereunder, or the annual or other premiums payable
thereunder, and no such cancellation or material amendment is
threatened.
Section 4.19 Outstanding Indebtedness
On the date of this Agreement, the Borrower has no
outstanding Indebtedness except (i) as reflected on the financial
statements of the Borrower which have been provided to each
Lender or disclosed in Schedule 7.1 attached hereto and (ii)
Indebtedness incurred in the ordinary course of business
subsequent to the date of such financial statements.
ARTICLE 5
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of and interest on
any Loan or any fee remains unpaid:
Section 5.1 Financial Statements and Other Information
The Borrower will deliver to the Administrative
Agent and each Lender:
(a) as soon as available and in any event within 120 days after
the end of each fiscal year of Borrower, (i) a copy of the annual
audited report for such fiscal year for the Borrower and its
Subsidiaries, containing a consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income, stockholders'
equity and cash flows (together with all footnotes thereto) of
the Borrower and its Subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and reported on by
PriceWaterhouseCoopers, LLP or other independent certified public
accountants of nationally recognized standing chosen by Borrower
and acceptable to Lender, (without a "going concern" or like
qualification, exception or explanation and without any
qualification or exception as to scope of such audit) to the
effect that such financial statements present fairly in all
material respects the financial condition and the results of
operations of the Borrower and its Subsidiaries for such fiscal
year on a consolidated basis in accordance with GAAP and that the
examination by such accountants in connection with such
consolidated financial statements has been made in accordance
with generally accepted auditing standards and (ii) annual
unaudited consolidating balance sheets and income statements for
the Borrower and its Subsidiaries;
(b) as soon as available and in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, (i) an unaudited consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such fiscal
quarter with comparative information for the previous year end,
(ii) the related unaudited consolidated statements of income of
the Borrower and its Subsidiaries for such fiscal quarter and the
then elapsed portion of such fiscal year, setting forth in each
case in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower's previous
fiscal year, and (iii) consolidated statements of cash flow for
the then elapsed portion of such fiscal year with comparative
information for the corresponding portion of the previous fiscal
year, all certified by the chief financial officer or treasurer
of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and
its Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
or information referred to in clauses (a) and (b) above, (i) a
certificate of a Responsible Officer, (1) certifying, to the best
of his actual knowledge, as to whether there exists a Default or
Event of Default on the date of such certificate, and if a
Default or an Event of Default then exists, specifying the
details thereof and the action which the Borrower has taken or
proposes to take with respect thereto and (2) stating whether any
change in GAAP or the application thereof has occurred since the
date of the Borrower's audited financial statements referred to
in Section 4.4 and, if any change has occurred, specifying the
effect of such change on the financial statements accompanying
such certificate and (ii) a Covenant Compliance Certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting
firm that reported on such financial statements stating whether
they obtained any knowledge during the course of their
examination of such financial statements of any Default or Event
of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other
materials filed with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all functions of
said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs
and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.
Section 5.2 Notices of Material Events
The Borrower will furnish to the Administrative
Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or,
to the knowledge of the Borrower, affecting the Borrower or any
Subsidiary which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails to comply
with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any
Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for
any Environmental Liability and in each of the preceding clauses,
which individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably
be expected to result in a Material Adverse Effect;
(e) the acquisition or formation of a new Material Subsidiary;
(f) transfers of assets to non-Material Subsidiaries outside the
ordinary course of business; and
(g) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be
accompanied by a written statement of a Responsible Officer
setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with
respect thereto.
Section 5.3 Existence; Conduct of Business
The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade
names material to the conduct of its business and will continue
to engage in substantially the same business as presently
conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section shall prohibit
any merger, consolidation, liquidation or dissolution permitted
under Section 7.3.
Section 5.4 Compliance with Laws, Etc.
The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its
properties, except where the failure to do so, either
individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.5 Payment of Obligations
The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge at or before maturity, all of
its obligations and liabilities (including without limitation all
tax liabilities and claims that could result in a statutory Lien)
before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to
make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.6 Books and Records
The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements
of Borrower in conformity with GAAP.
Section 5.7 Visitation, Inspection, Etc.
The Borrower will, and will cause each of its
Subsidiaries to, permit any representative of the Administrative
Agent or any Lender, on reasonable advance written notice, to
visit and inspect its properties, to examine its books and
records and to make copies and take extracts therefrom, and to
discuss its affairs, finances and accounts with any of its
officers and with its independent certified public accountants,
all at such reasonable times and as often as the Administrative
Agent or any Lender may reasonably request after reasonable prior
notice to the Borrower.
Section 5.8 Maintenance of Properties; Insurance
The Borrower will, and will cause each of its
Subsidiaries to, (a) keep and maintain all property material to
the conduct of its business in good working order and condition,
ordinary wear and tear except where the failure to do so, either
individually or it the aggregate, could not reasonably be
expected to result in a Material Adverse Effect and (b) maintain
with financially sound and reputable insurance companies,
insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or
damage of the kinds and at least in the amounts as maintained by
the Borrower and the Subsidiaries on the date of this Agreement;
provided that such amounts shall be appropriately adjusted for
inflation and for changes in the nature and volume of the
business conducted by the Borrower and its Subsidiaries; provided
further, however, that for purposes of this Section 5.8, the self-
insurance program of the Borrower and its Subsidiaries with
respect to comprehensive and collision damage to its highway
vehicles, comprehensive general and automotive liability and
property damage and as in effect on the date hereof is hereby
deemed adequate insurance against losses.
Section 5.9 Use of Proceeds
The Borrower will use the proceeds of all Loans to
refinance existing debt, finance working capital needs, capital
expenditures and for other general corporate purposes of the
Borrower and its Subsidiaries. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of
Governors of the Federal Reserve System, including Regulations T,
U or X.
Section 5.10 Additional Subsidiaries
If any additional Material Subsidiary is acquired or
formed after the Closing Date, the Borrower will, within ten (10)
business days after such Material Subsidiary is acquired or
formed, notify the Administrative Agent and the Lenders thereof
and will, if such Subsidiary is not a Foreign Subsidiary or a SPE
Subsidiary, cause such Material Subsidiary to become a Subsidiary
Loan Party by executing agreements in the form of Annex I to
Exhibit D and Annex I to Exhibit E in form and substance
satisfactory to the Administrative Agent and the Required Lenders
and will cause such Material Subsidiary to deliver simultaneously
therewith similar documents applicable to such Material
Subsidiary required under Section 3.1 as reasonably requested by
the Administrative Agent. If the Borrower forms or acquires
additional
Subsidiaries ("non-Material Subsidiaries") which are
neither Material Subsidiaries, Foreign Subsidiaries nor SPE
Subsidiaries, at such time as the assets, revenues or income of
all such non-Material Subsidiaries when considered on a
consolidated basis would reach the level required for a
Subsidiary to qualify as a Material Subsidiary; all then existing
non-Material Subsidiaries and all subsequently formed or acquired
non-Material Subsidiaries shall become Subsidiary Loan Parties by
complying with the requirements set forth in this Section 5.10.
ARTICLE 6
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on or
any Loan remains unpaid or any fee remains unpaid:
Section 6.1 Leverage Ratio
The Borrower will have, as of the end of each fiscal
quarter of the Borrower, commencing with the fiscal quarter
ending September 30, 2004, a Leverage Ratio of not greater than
55%.
Section 6.2 Consolidated Total Debt to EBITDA Ratio
The Borrower will have, as of the end of each fiscal
quarter of the Borrower, commencing with the fiscal quarter
ending September 30, 2004, a Consolidated Total Debt to EBITDA
Ratio of equal to or less than 3.5:1.0, calculated on a rolling
four quarter basis.
Section 6.3 Fixed Charge Coverage Ratio
The Borrower will have, as of the end of each fiscal
quarter of the Borrower, commencing with the fiscal quarter
ending September 30, 2004, a Fixed Charge Coverage Ratio of not
less than 2.0:1.0, calculated based on a rolling four quarter
basis.
ARTICLE 7
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on any
Loan remains unpaid or any fee remains unpaid:
Section 7.1 Indebtedness
The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 (including unborrowed portions of any lines of
credit shown thereon) and extensions, renewals and replacements
of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to
such extension, renewal or replacement) or shorten the maturity
or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary in a
principal amount which, when combined with Indebtedness permitted
by Section 7.1(h), does not exceed $7,000,000.00 in the aggregate
and which is incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with
the acquisition of any such assets of secured by a Lien on any
such assets prior to the acquisition thereof; provided, that such
Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or
improvements or extensions, renewals, and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof;
(d) Permitted Subordinated Debt;
(e) Indebtedness in respect of obligations under Hedging
Agreements permitted by Section 7.10;
(f) current Indebtedness incurred in the ordinary course of
business, trade letters of credit and Indebtedness arising in
connection with letters of credit obtained in the ordinary course
of business;
(g) Indebtedness in the form of mortgage loans in connection
with permanent financing of improved commercial real properties;
and
(h) other unsecured Indebtedness outstanding at any time which,
when added to Indebtedness permitted by Section 7.1(c), does not
exceed $7,000,000.00 in the aggregate.
Section 7.2 Negative Pledge
The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter
acquired except:
(a) Permitted Encumbrances;
(b) any Liens on any property or assets of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule
7.2; provided, that such Lien shall not apply to any other
property or asset of the Borrower or any Subsidiary;
(c) purchase money Liens upon or in any fixed or capital assets
to secure the purchase price or the cost of construction or
improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of such fixed or capital
assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness
permitted by Section 7.1(c), (ii) such Lien attaches to
such asset concurrently or within 90 days after the acquisition,
improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness
secured thereby does not exceed the cost of acquiring, constructing
or improving such fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower, (ii) existing
on any asset of any Person at the time such Person is merged with
or into the Borrower or any Subsidiary of the Borrower or (iii)
existing on any asset prior to the acquisition thereof by the
Borrower or any Subsidiary of the Borrower; provided, that any
such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which
it secures on the date that such Person becomes a Subsidiary or
the date of such merger or the date of such acquisition;
(e) Liens securing Indebtedness permitted under Section 7.1;
(f) Liens or pledges of securities of the Borrower or any
Subsidiary to governmental agencies pursuant to the Borrower's or
any Subsidiary's insurance program;
(g) Rights reserved or vested in governmental authority which do
not materially impair the use of such property;
(h) extensions, renewals, or replacements of any Lien referred
to in paragraphs (a) through (g) of this Section; provided, that
the principal amount of the Indebtedness secured thereby is not
increased and that any such extension, renewal or replacement is
limited to the assets originally encumbered thereby; and
(i) Liens on improved commercial real properties in connection
with permanent financing thereof.
Section 7.3 Fundamental Changes.
(a) Except as permitted by Section 7.6, the Borrower will not,
and will not permit any Subsidiary to, merge into or consolidate
into any other Person, or permit any other Person to merge into
or consolidate with it, or sell, lease, transfer or otherwise
dispose of (in a single transaction or a series of transactions)
all or substantially all of its assets (in each case, whether now
owned or hereafter acquired) or all or substantially all of the
stock of any of its Subsidiaries (in each case, whether now owned
or hereafter acquired) or liquidate or dissolve; provided, that
if at the time thereof and immediately after giving effect
thereto, no Default or Event of Default shall have occurred and
be continuing (i) the Borrower or any Subsidiary may merge with a
Person if the Borrower (or such Subsidiary if the Borrower is not
a party to such merger) is the surviving Person, (ii) any
Subsidiary may merge into another Subsidiary; provided, that if
any party to such merger is a Subsidiary Loan Party, the
Subsidiary Loan Party shall be the surviving Person, (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of all
or substantially all of its assets to the Borrower or to a
Subsidiary Loan Party and (iv) any Subsidiary (other than a
Subsidiary Loan Party) may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided, that any such merger
involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless
also permitted by Section 7.4. Notwithstanding the foregoing,
the Borrower and the Guarantors shall be permitted to transfer
real properties to SPE Subsidiaries for the purpose of permanent
financing of such properties.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business
other than businesses of substantially the same type conducted by
the Borrower and its Subsidiaries on the date hereof and
businesses reasonably related thereto.
Section 7.4 Investments, Loans, Etc.
The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness
or other securities (including any option, warrant, or other
right to acquire any of the foregoing) of, make or permit to
exist any loans or advances to, Guarantee any obligations of, or
make or permit to exist any investment or any other interest in,
any other Person (all of the foregoing being collectively called
"Investments"), or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other
Person ("Acquisitions"), except:
(a) Investments (other than Permitted Investments) existing on
the date hereof and set forth on Schedule 7.4;
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section
7.1; provided, that the aggregate principal amount of
Indebtedness of Subsidiaries that are not Subsidiary Loan Parties
that is Guaranteed by any Loan Party shall be subject to the
limitation set forth in clause (d) hereof;
(d) Investments made by the Borrower in or to any Subsidiary and
by any Subsidiary to the Borrower or in or to another Subsidiary;
(e) loans or advances to employees, officers or directors of the
Borrower or any Subsidiary in the ordinary course of business for
travel, relocation and related expenses;
(f) Hedging Agreements permitted by Section 7.10;
(g) Real estate investments or joint ventures that are typical
in the Borrower's ordinary course of business;
(h) Other Investments which in the aggregate do not exceed
$5,000,000.00 in any fiscal year of the Borrower; and
(i) Acquisitions not to exceed in the aggregate in any fiscal
year of the Borrower 15% of Consolidated Net Worth (measured at
the end of the immediately preceding fiscal year); provided that
Acquisitions in the aggregate in any fiscal year of the Borrower
up to
20% of Consolidated Net Worth (measured at the end of the
immediately preceding fiscal year) may be made after delivery to
the Administrative Agent of pro forma consolidated financial
statements, certified by the Borrower and reasonably acceptable
to the Administrative Agent, showing that after giving effect to
such Acquisitions no Default or Event of Default would exist.
Section 7.5 Restricted Payments
After the date of this Agreement, the Borrower will
not, and will not permit its Subsidiaries to, declare or make, or
agree to pay or make, directly or indirectly, any dividend on any
class of its stock, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition
of, any Indebtedness subordinated to the Obligations of the
Borrower or any options, warrants, or other rights to purchase
such Indebtedness, whether now or hereafter outstanding (each, a
"Restricted Payment"), except for (i) dividends not exceeding
66.6% of Consolidated Net Income subsequent to September 30,
2003, (ii) dividends payable by the Borrower solely in shares of
any class of its common stock, (iii) Restricted Payments made by
any Subsidiary to the Borrower or to another Subsidiary Loan
Party and (iv) cash redemptions of the common stock of the
Borrower; provided, that the exceptions permitted pursuant to
clauses (i) through (iv) shall apply only if no Default or Event
of Default has occurred and is continuing at the time such
dividend or other payment is paid or redemption is made.
Section 7.6 Sale of Assets
The Borrower will not, and will not permit any of
its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property,
whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's common
stock to, any Person other than the Borrower or any wholly-owned
Subsidiary of the Borrower (or to qualify directors if required
by applicable law), except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for
operations disposed of in the ordinary course of business;
(b) the sale of assets and Permitted Investments in the ordinary
course of the transportation and real estate business of the
Borrower and its Subsidiaries including, without limitation, the
sale of any parcel of real property for fair market value;
(c) the sale or other disposition of such other assets in an
aggregate amount not to exceed $5,000,000.00 during the term of
this Agreement; provided, however, that such amount shall not
include (i) intercompany mergers of Subsidiaries, (ii) sales,
leases or transfers of assets of any Subsidiary to the Borrower
or any other Subsidiary, and (iii) mergers or consolidations with
the Borrower or any Subsidiary so long as the Borrower or such
Subsidiary shall be the surviving corporation and no Default or
Event of Default shall then exist; and
(d) the transfer of real properties to SPE Subsidiaries for the
purpose of permanent financing of such properties, in the
ordinary course of business of the Borrower.
Section 7.7 Transactions with Affiliates
The Borrower will not, and will not permit any of
its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire
any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions
not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties
including, without limitation, those affiliate transactions
disclosed in the Borrower's Form 10-K as on file with the
Securities and Exchange Commission on the date hereof, (b)
transactions between or among the Borrower and the Guarantors not
involving any other Affiliates and (c) any Restricted Payment
permitted by Section 7.5.
Section 7.8 Restrictive Agreements
The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit any Lien upon any of its
assets or properties, whether now owned or hereafter acquired, or
(b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay
loans or advances to the Borrower or any other Subsidiary, to
Guarantee Indebtedness of the Borrower or any other Subsidiary or
to transfer any of its property or assets to the Borrower or any
Subsidiary of the Borrower; provided, that (i) the foregoing
shall not apply to restrictions or conditions imposed by law or
by this Agreement or any other Loan Document, (ii) the foregoing
shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions
apply only to the Subsidiary that is sold and such sale is
permitted hereunder, (iii) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such
restrictions and conditions apply only to the property or assets
securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases and other contracts restricting
the assignment thereof.
Section 7.9 Sale and Leaseback Transactions
The Borrower will not, and will not permit any of
the Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real
or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property
or other property that it intends to use for substantially the
same purpose or purposes as the property sold or transferred.
Section 7.10 Hedging Agreements
The Borrower will not, and will not permit any of
the Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the
management of its liabilities. Solely for the avoidance of
doubt, the Borrower acknowledges that a Hedging Agreement entered
into for speculative purposes or of a speculative nature (which
shall be deemed to include any Hedging Agreement under which the
Borrower or any of the Subsidiaries is or may become obliged to
make any payment (i) in connection with the purchase by any third
party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common
stock or any Indebtedness) is not a Hedging Agreement entered
into in the ordinary course of business to hedge or mitigate risks.
Section 7.11 Amendment to Material Documents
The Borrower will not, and will not permit any
Subsidiary to, amend, modify or waive any of its rights in a
manner materially adverse to the Lenders under (a) its
certificate of incorporation, bylaws or other organizational
documents or (b) Material Contracts.
Section 7.12 Permitted Subordinated Indebtedness
(a) The Borrower will not, and will not permit any of its
Subsidiaries to (i) prepay, redeem, repurchase or otherwise
acquire for value any Permitted Subordinated Debt, or (ii) make
any principal, interest or other payments on any Permitted
Subordinated Debt that is not expressly permitted by the
subordination provisions of the Subordinated Debt Documents.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, agree to or permit any amendment, modification
or waiver of any provision of any Subordinated Debt Document if
the effect of such amendment, modification or waiver is to (i)
increase the interest rate on such Permitted Subordinated Debt
for change (to earlier dates) the dates upon which principal and
interest are due thereon; (ii) alter the redemption, prepayment
or subordination provisions thereof; (iii) alter the covenants
and events of default in a manner that would make such provisions
more onerous or restrictive to the Borrower or any such
Subsidiary; or (iv) otherwise increase the obligations of the
Borrower or any Subsidiary in respect of such Permitted
Subordinated Debt or confer additional rights upon the holders
thereof which individually or in the aggregate would be adverse
to the Borrower or any of its Subsidiaries or to the Agent or the
Lenders.
Section 7.13 Accounting Changes
The Borrower will not, and will not permit any
Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required or preferred
by GAAP, or change the fiscal year of the Borrower or of any
Subsidiary, except to change the fiscal year of a Subsidiary to
conform its fiscal year to that of the Borrower.
Section 7.14 Name Changes.
The Borrower will not, and will not permit any
Material Subsidiary or Guarantor to, without thirty (30) days
prior written notice, change its name, its place of business or,
if more than one, chief executive office, or its mailing address
or organizational identification number if it has one.
ARTICLE 8
EVENTS OF DEFAULT
Section 8.1 Events of Default
If any of the following events (each an "Event of
Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment or otherwise;
or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount payable under
clause (a) of this Article) payable under this Agreement or any
other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period
of ten (10) days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any other Loan Document (including the
Schedules attached thereto) and any amendments or modifications
hereof or waivers hereunder, or in any certificate, report,
financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any
representative of any Loan Party pursuant to or in connection
with this Agreement or any other Loan Document shall prove to be
false or misleading when made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant
or agreement contained in Sections 5.1 or 5.10 or Articles 6 or 7
(other than in Section 7.14) and such failure shall continue
unremedied for a period of thirty (30) days; or
(e) any Loan Party shall fail to observe or perform any covenant
or agreement contained in Section 5.9; or
(f) any Loan Party shall fail to observe or perform any covenant
or agreement contained in this Agreement or any other Loan
Document (other than those referred to in clauses (a), (b), (d)
and (e) above), and such failure shall remain unremedied for 30
days after the earlier of (i) any officer of the Borrower becomes
aware of such failure, or (ii) written notice thereof shall have
been given to the Borrower by the Administrative Agent or any
Lender; or
(g) the Borrower, any Subsidiary Loan Party or any other
Subsidiary subject to any Indebtedness exceeding $100,000.00 in
the aggregate other than non-recourse Indebtedness (a "Recourse
Subsidiary") (whether as primary obligor or as guarantor or other
surety) shall fail to pay any principal of or premium or interest
on any Material Indebtedness that is outstanding, when and as the
same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument evidencing such
Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable; or required
to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the stated
maturity thereof; or
(h) the Borrower, any Subsidiary Loan Party or any Recourse
Subsidiary shall (i) commence a voluntary case or other
proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a custodian,
trustee, receiver, liquidator or other similar official of it or
any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (i) of
this Section, (iii) apply for or consent to the appointment of a
custodian, trustee, receiver, liquidator or other similar
official for the Borrower, any such Subsidiary Loan Party or any
Recourse Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, or (vi) take any action
for the purpose of effecting any of the foregoing; or
(i) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower, any
Subsidiary Loan Party or any Recourse Subsidiary or its debts,
or any substantial part of its assets, under any federal, state
or foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the
Borrower, any Subsidiary Loan Party or any Recourse Subsidiary
or for a substantial part of its assets, and in any such case,
such proceeding or petition shall remain undismissed for a period
of 60 days or an order or decree approving or ordering any of the
foregoing shall be entered; or
(j) the Borrower, any Subsidiary Loan Party or any Recourse
Subsidiary shall become unable to pay, shall admit in writing its
inability to pay, or shall fail to pay, its debts as they become
due; or
(k) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect; or
(l) any judgment or order for the payment of money in excess of
$3,500,000.00 (after application of net insurance proceeds, if
any) in the aggregate or that could reasonably be expected to
have a Material Adverse Effect shall be rendered against the
Borrower, any Subsidiary Loan Party or any Recourse Subsidiary,
and either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there shall
be a period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(m) any non-monetary judgment or order shall be rendered against
the Borrower, any Subsidiary Loan Party or any Recourse
Subsidiary that could reasonably be expected to have a Material
Adverse Effect, and there shall be a period of 60 consecutive
days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(n) a Change in Control shall occur or exist; or
(o) any provision of any Subsidiary Guarantee Agreement shall
for any reason cease to be valid and binding on, or enforceable
against, any Subsidiary Loan Party, or any Subsidiary Loan Party
shall so state in writing, or any Subsidiary Loan Party shall
seek to terminate its Subsidiary Guarantee Agreement;
then, and in every such event (other than an event with respect
to the Borrower described in clause (h) or (i) of this Section)
and at any time thereafter during the continuance of such event,
the Administrative Agent may, and upon the written request of the
Required Lenders shall, by notice to the Borrower, take any or
all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each
Lender shall terminate immediately; (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 due and
payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower and (iii) exercise all remedies contained in any other
Loan Document; and (iv) demand payment of an amount equal to 100%
of the aggregate Available Amount under all outstanding Letters
of Credit, to be held by the Administrative Agent as collateral
for the Borrower's reimbursement obligations; and that, if an
Event of Default specified in either clause (h) or (i) shall
occur, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued
interest thereon, an amount equal to the aggregate Available
Amount under all outstanding Letters of Credit, and all fees, and
all other Obligations shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
ARTICLE 9
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment of Administrative Agent
Each Lender irrevocably appoints Wachovia Bank,
National Association, as the Administrative Agent and authorizes
it to accept delivery of Notes from the Borrower or Agent for the
Lenders and to take such other actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent
under this Agreement and the other Loan Documents, together with
all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties
hereunder by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its
rights and powers through their respective Related Parties. The
exculpatory provisions set forth in this Article shall apply to
any such sub-agent and the Related Parties of the Administrative
Agent and any such sub-agent and shall apply to their respective
activities in connection with the syndication of the credit
facilities provided for herein as well as activities as
Administrative Agent.
Section 9.2 Nature of Duties of Administrative Agent
The Administrative Agent shall not have any duties
or obligations except those expressly set forth in this Agreement
and the other Loan Documents. Without limiting the generality of
the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or
other implied duties, regardless of whether a Default or an
Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2), and (c) except as
expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiaries that is communicated to
or obtained by the Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2) or in the absence of
its own gross negligence or willful misconduct. The
Administrative Agent shall not be deemed to have knowledge of any
Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or
any Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection
with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms
and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document
or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article 3 or elsewhere
in any Loan Document, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
Section 9.3 Lack of Reliance on the Administrative Agent
Each of the Lenders and the Swingline Lender
acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its
own review of all Loan Documents and credit analysis and decision
to enter into this Agreement. Each of the Lenders and the
Swingline Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has
deemed appropriate, continue to make its own decisions in taking
or not taking of any action under or based on this Agreement, any
related agreement or any document furnished hereunder or
thereunder.
Section 9.4 Certain Rights of the Administrative Agent
If the Administrative Agent shall request
instructions from the Required Lenders with respect to any action
or actions (including the failure to act) in connection with this
Agreement, the Administrative Agent shall be entitled to refrain
from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative
Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have
any right of action whatsoever against the Administrative Agent
as a result of the Administrative Agent acting or refraining from
acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5 Reliance by Administrative Agent
The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to
have been signed, sent or made by the proper Person. The
Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed by it to be made by the
proper Person and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
Section 9.6 The Administrative Agent in its Individual
Capacity
The bank serving as the Administrative Agent shall
have the same rights and powers under this Agreement and any
other Loan Document in its capacity as a Lender as any other
Lender and may exercise or refrain from exercising the same as
though it were not the Administrative Agent; and the terms
"Lenders," "Required Lenders," "holders of Notes," or any similar
terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The
bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate
of the Borrower as if it were not the Administrative Agent
hereunder.
Section 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent, subject to the approval by the
Borrower provided that no Default or Event of Default shall exist
at such time. If no successor Administrative Agent shall have
been so appointed, and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent
gives notice of resignation, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or any state
thereof or a bank which maintains an office in the United States,
having a combined capital and surplus of at least
$500,000,000.00.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this
Agreement and the other Loan Documents. If within forty-five
(45) days after written notice is given of the retiring
Administrative Agent's resignation under this Section 9.7 no
successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i)
the retiring Administrative Agent's resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon
be discharged from its duties and obligations under the Loan
Documents and (iii) the Required Lenders shall thereafter
perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint
a successor Administrative Agent as provided above. After any
retiring Administrative Agent's resignation hereunder, the
provisions of this Article 9 shall continue in effect for the
benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not
taken by any of them while it was serving as the Administrative
Agent.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and
other communications to any party herein to be effective shall be
in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Patriot Transportation Holding, Inc.
1801 Art Museum Drive
Jacksonville, Florida 32207
Attention: Ray M. Van Landingham,
Vice President of Finance and
Administration
Telecopy Number: (904) 396-2715
To the Administrative Agent: Wachovia Bank, National Association
Charlotte Plaza, CP-8
201 South College Street
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency
Services
Telephone No: (704) 374 2698
Telecopy No: (704) 383 0288
With a copy to: John M. Welch, Jr., Esq.
Foley & Lardner LLP
One Independent Drive, Suite 1300
Jacksonville, Florida 32202-5017
Telecopy Number: (904) 359-8700
To the Swingline Lender: Bank of America, N.A.
Attention: _________________
Telecopy Number: __________
To any other Lender: the address set forth in the
Administrative Questionnaire;
provided, however, that notices,
communications and deliveries
required or permitted by the
Letter of Credit or other Letter
of Credit Documents shall be
given as set forth therein.
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
parties hereto. All such notices and other communications shall,
when transmitted by overnight delivery, or faxed, be effective
when delivered for overnight (next-day) delivery, or transmitted
in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the
mails or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent or the Swingline Bank shall
not be effective until actually received by such Person at its
address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower.
The Administrative Agent and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to
the Borrower or other Person on account of any action taken or
not taken by the Administrative Agent or the Lenders in reliance
upon such telephonic or facsimile notice. The obligation of the
Borrower to repay the Loans and all other Obligations hereunder
shall not be affected in any way or to any extent by any failure
of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt
by the Administrative Agent and the Lenders of a confirmation
which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in any such
telephonic or facsimile notice.
Section 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent or any
Lender in exercising any right or power hereunder or any other
Loan Document, and no course of dealing between the Borrower and
the Administrative Agent or any Lender, shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
right or power or any abandonment or discontinuance of steps to
enforce such right or power, preclude any other or further
exercise thereof or the exercise of any other right or power
hereunder or thereunder. The rights and remedies of the
Administrative Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law. No waiver of any provision of
this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the
making of a Loan shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the
Administrative Agent or any Lender may have had notice or
knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Borrower and
the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders and then such waiver
or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, that no amendment
or waiver shall: (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone
the date fixed for any payment of any principal of, or interest
on, any Loan or interest thereon or any fees hereunder or reduce
the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any
Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.20(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or
percentage of Lenders which are required to waive, amend or
modify any rights hereunder or make any determination or grant
any consent hereunder, without the consent of each Lender; (vi)
release any guarantor or limit the liability of any such
guarantor under any guaranty agreement; (vii) release all or
substantially all collateral (if any) securing any of the
Obligations; provided further, that no such agreement shall
amend, modify or otherwise affect the rights, duties or
obligations of the Administrative Agent or the Swingline Lender
without the prior written consent of such Person.
Section 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) subject to the limitations set
forth in the Commitment Letter, all reasonable, out-of-pocket
costs and expenses of the Administrative Agent and its
Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and its
Affiliates, in connection with the syndication of the credit
facilities provided for herein, the preparation and
administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions
contemplated in this Agreement or any other Loan Document shall
be consummated) and (ii) all reasonable out-of-pocket costs and
expenses (including, without limitation, the reasonable fees,
charges and disbursements of outside counsel and the allocated
cost of inside counsel) incurred by the Administrative Agent or
any Lender in connection with the enforcement or protection of
its rights in connection with this Agreement, including its
rights under this Section, or in connection with the Loans made,
including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and
each Lender, and each Related Party of any of the foregoing
(each, an "Indemnitee") against, and hold each of them harmless
from, any and all costs, losses, liabilities, claims, damages and
related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, which may be
incurred by or asserted against any Indemnitee arising out of, in
connection with or as a result of (i) the execution or delivery
of this Agreement or any other agreement or instrument
contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of any
of the transactions contemplated hereby, (ii)
any Loan or any actual or proposed use of the proceeds
therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned by the Borrower
or any Subsidiary or any Environmental Liability related in any
way to the Borrower or any Subsidiary or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a party
thereto; provided, that the Borrower shall not be obligated to
indemnify any Indemnitee for any of the foregoing arising out
of such Indemnitee's gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final and
nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent
and each of the Lenders harmless from and against, any and all
present and future stamp, documentary, and other similar taxes
with respect to this Agreement and any other Loan Documents, any
collateral described therein, or any payments due thereunder, and
save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from
any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent or any Lender
under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent or such unpaid Lender,
as the case may be, such Lender's Pro Rata Share (determined as
of the time that the unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided, that the unreimbursed
expense or indemnified payment, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the unpaid Lender in its
capacity as such, including the capacity of Swingline Lender or
Letter of Credit Issuer.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct
damages) arising out of, in connection with or as a result of,
this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or the
use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
Section 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign
or transfer any of its rights hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer
by the Borrower without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a
portion of its Commitment and the Loans at the time owing to it);
provided,
that (i) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment while an
Event of Default has occurred and is continuing, each of the
Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's
obligations in respect of its Swingline Exposure and the
Swingline Lender) must give their prior written consent (which
consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire amount of the
assigning Lender's Commitment hereunder or an assignment while an
Event of Default has occurred and is continuing, the amount of
the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000.00
(unless the Borrower and the Administrative Agent shall otherwise
consent), (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement and the other Loan
Documents, (iv) the assigning Lender and the assignee shall
execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee
payable by the assigning Lender or the assignee (as determined
between such Persons) in an amount equal to $3,500.00 and (v)
such assignee, if it is not a Lender, shall deliver a duly
completed Administrative Questionnaire to the Administrative
Agent; provided, that any consent of the Borrower otherwise
required hereunder shall not be required if an Event of Default
has occurred and is continuing. Upon the execution and delivery
of the Assignment and Acceptance and payment by such assignee to
the assigning Lender of an amount equal to the purchase price
agreed between such Persons, such assignee shall become a party
to this Agreement and any other Loan Documents to which such
assigning Lender is a party and, to the extent of such interest
assigned by such Assignment and Acceptance, shall have the rights
and obligations of a Lender under this Agreement, and the
assigning Lender shall be released from its obligations hereunder
to a corresponding extent (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.16, 2.17, 2.18, and 10.3). Upon the consummation of
any such assignment hereunder, the assigning Lender, the
Administrative Agent and the Borrower shall make appropriate
arrangements to have new Notes issued if so requested by either
or both the assigning Lender or the assignee. Any assignment or
other transfer by a Lender that does not fully comply with the
terms of this clause (b) shall be treated for purposes of this
Agreement as a sale of a participation pursuant to clause (c)
below.
(c) Any Lender may at any time, without the consent of the
Borrower, the Administrative Agent or the Swingline Lender, sell
participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of
its Commitment and the Loans owing to it); provided, that (i)
such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of its obligations
hereunder, and (iii) the Borrower, the Administrative Agent, the
Swingline Lender and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the
other Loan Documents. Any agreement between such Lender and the
Participant with respect to such participation shall provide that
such Lender shall retain the sole right and responsibility to
enforce this Agreement and the other Loan Documents and the right
to approve any amendment, modification or waiver
of this Agreement and the other Loan Documents; provided,
that such participation agreement may provide that such Lender
will not, without the consent of the Participant, agree to any
amendment, modification or waiver of this Agreement described in
the first proviso of Section 10.2(b) that affects the Participant.
The Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.16, 2.17, and 2.18 to the same extent as
if it were a Lender hereunder and had acquired its interest by
assignment pursuant to paragraph (b); provided, that no
Participant shall be entitled to receive any greater payment
under Section 2.16 or 2.18 than the applicable Lender would have
been entitled to receive with respect to the participation sold
to such Participant unless the sale of such participation is made
with the Borrower's prior written consent. To the extent
permitted by law, the Borrower agrees that each Participant shall
be entitled to the benefits of Section 2.20 as though it were a
Lender, provided, that such Participant agrees to share with the
Lenders the proceeds thereof in accordance with Section 2.20 as
fully as if it were a Lender hereunder. A Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 2.19 unless the Borrower is notified of
such participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section
2.19(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
and its Notes (if any) to secure its obligations to a Federal
Reserve Bank without complying with this Section; provided, that
no such pledge or assignment shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPV"), identified as such in writing from
time to time by the Granting Lender to the Administrative Agent
and the Borrower, the option to provide to the Borrower all or
any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment
by any SPV to make any Loan and (ii) if an SPV elects not to
exercise such option or otherwise fails to provide all or any
part of any Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by
an SPV hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with
the Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will
not institute against, or join any other person in instituting
against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the
United States or any State contrary to this Section 10.4. Any
SPV may (i) with notice to, but without the prior written consent
of, the Borrower and the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Lender or to any financial
institutions (consented to by the Borrower and the Administrative
Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of
Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency,
commercial paper dealer or
provider of any surety, guarantee or credit or liquidity
enhancement to such SPV. As this Section 10.4(e) applies to
any particular SPV, this Section may not be amended without the
written consent of such SPV.
Section 10.5 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without
giving effect to the conflict of law principles thereof) of the
State of Florida.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the non-exclusive jurisdiction of
the Circuit Court of Duval County, Florida, the United States
District Court of the Middle District of Florida, and of any
state court of the State of Florida and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition
or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in such Florida state court or, to the extent
permitted by applicable law, such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent or
any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding described in
paragraph (b) of this Section and brought in any court referred
to in paragraph (b) of this Section. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
Section 10.6 WAIVER OF JURY TRIAL
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7 Right of Setoff
In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such
rights, each Lender shall have the right, at any time or from
time to time upon the occurrence and during the continuance of an
Event of Default, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent
permitted by applicable law, to set off and apply against all
deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at
any time owing by such Lender to or for the credit or the account
of the Borrower against any and all Obligations held by such
Lender, irrespective of whether such Lender shall have made
demand hereunder and although such Obligations may be unmatured.
Each Lender agrees promptly to notify the Administrative Agent
and the Borrower after any such set off and any application made
by such Lender; provided, that the failure to give such notice
shall not affect the validity of such set-off and application.
Section 10.8 Counterparts; Integration
This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument. This Agreement, the other Loan Documents, and any
separate letter agreement(s) relating to any fees payable to the
Administrative Agent constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof
and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
Section 10.9 Survival
All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or
other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by
the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans,
regardless of any investigation made by any such other party or
on its behalf and notwithstanding that the Administrative Agent
or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan
or any fee or any other amount payable under this Agreement is
outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.17, 2.18,
2.19, 10.3 and Article 9 shall survive and remain in full force
and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration
or termination of the Commitments or the termination of this
Agreement or any provision hereof. All representations and
warranties made herein, in the certificates, reports, notices,
and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the
other Loan Documents, and the making of the Loans.
Section 10.10 Severability
Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to
the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the
remaining provisions hereof or thereof; and the illegality,
invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.11 Confidentiality
Each of the Administrative Agent and each Lender
agrees to take normal and reasonable precautions to maintain the
confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any
Subsidiary, except that such information may be disclosed (i) to
any Related Party of the Administrative Agent or any such Lender,
including without limitation accountants, legal counsel and other
advisors, (ii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iii) to
the extent requested by any regulatory agency or authority, (iv)
to the extent that such information becomes publicly available
other than as a result of a breach of this Section, or which
becomes available to the Administrative Agent, any Lender or any
Related Party of any of the foregoing on a nonconfidential basis
from a source other than the Borrower, (v) in connection with the
exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of
rights hereunder, and subject to provisions substantially similar
to this Section 10.11, to any actual or prospective assignee or
Participant, or (vi) with the consent of the Borrower. Any
Person required to maintain the confidentiality of any
information as provided for in this Section shall be considered
to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality
of such information as such Person would accord its own
confidential information.
Section 10.12 Interest Rate Limitation
Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the
"Charges"), shall exceed the maximum lawful rate of interest (the
"Maximum Rate") which may be contracted for, charged, taken,
received or reserved by a Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of
such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall
have been received by such Lender.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal in the case of the
Borrower, by their respective authorized officers as of the day
and year first above written.
PATRIOT TRANSPORTATION HOLDING,
INC.
By:/s/ Ray M. Van Landingham
-----------------------------
Print Name: Ray M. Van Landingham
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative
Agent, as Letter of Credit
Issuer and as a Lender
By: /s/ Charles N. Kauffman
-----------------------------
Print Name: Charles N. Kauffman
Title: Senior Vice President
Revolving Commitment: $12,000,000.00
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
WACHOVIA BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
SUN TRUST BANK
By:_________________________
Print Name:_________________
Title:______________________
Revolving Commitment: $10,000,000.00
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
WACHOVIA BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
BANK OF AMERICA, N.A.
By:___________________________
Name:_________________________
Title:________________________
Revolving Commitment: $10,000,000.00
Swingline Commitment: $5,000,000.00
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
WACHOVIA BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
COMPASS BANK
By:__________________________
Name:________________________
Title:_______________________
Revolving Commitment: $5,000,000.00
ACKNOWLEDGMENT OF BORROWER
STATE OF _________
COUNTY OF _______
On this the ____ day of November, 2004, personally appeared
Ray M. Van Landingham, as the Vice President of Patriot
Transportation Holding, Inc., a Florida corporation (the
"Borrower"), and before me, executed the foregoing Amended and
Restated Revolving Credit Agreement dated as of November 10,
2004, among the Borrower, Wachovia Bank, National Association, as
Administrative Agent and the Lenders signatories thereto on
behalf of the Borrower.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
-----------------------------------
Signature of Notary Public, State
of_________________________
----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
____ Personally known ; OR
____ Produced identification
Type of identification
produced:________________
(Notary Seal)
ACKNOWLEDGMENT OF WACHOVIA BANK, NATIONAL ASSOCIATION
STATE OF FLORIDA
COUNTY OF DUVAL
On this the ____ day of November, 2004, personally appeared
Charles N. Kauffman, as the Senior Vice President of Wachovia
Bank, National Association, a national banking association, as
Administrative Agent, Letter of Credit Issuer and Lender (
"Wachovia"), and before me, executed the foregoing Amended and
Restated Revolving Credit Agreement dated as of November 10,
2004, among the Borrower, Wachovia Bank, National Association, as
Administrative Agent and the Lenders signatories thereto, on
behalf of Wachovia.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
----------------------------------
Signature of Notary Public, State
and County Aforesaid
---------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
____ Personally known ; OR
____ Produced identification
Type of identification
produced:________________
(Notary Seal)
ACKNOWLEDGMENT OF SUNTRUST BANK
STATE OF ____________________
COUNTY OF __________________
On this the ____ day of November, 2004, personally appeared
______________________, as the _________________________ of
SunTrust Bank, a Georgia banking corporation (the "Lender"), and
before me, executed the foregoing Amended and Restated Revolving
Credit Agreement dated as of November 10, 2004, among the
Borrower, Wachovia Bank, National Association, as Administrative
Agent and the Lenders signatories thereto, on behalf of the
Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
----------------------------------
Signature of Notary Public, State
and County Aforesaid
-----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
____ Personally known ; OR
____ Produced identification
Type of identification
produced:________________
(Notary Seal)
ACKNOWLEDGMENT OF BANK OF AMERICA, N.A.
STATE OF ____________________
COUNTY OF __________________
On this the ____ day of November, 2004, personally appeared
______________________, as the _________________________ of Bank
of America, N.A., a national banking association (the "Lender"),
and before me, executed the foregoing Amended and Restated
Revolving Credit Agreement dated as of November 10, 2004, among
the Borrower, Wachovia Bank, National Association, as
Administrative Agent and the Lenders signatories thereto, on
behalf of the Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
----------------------------------
Signature of Notary Public, State
and County Aforesaid
----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
____ Personally known ; OR
____ Produced identification
Type of identification
produced:________________
(Notary Seal)
ACKNOWLEDGMENT OF COMPASS BANK
STATE OF ____________________
COUNTY OF __________________
On this the ____ day of November, 2004, personally appeared
______________________, as the _________________________ of
Compass Bank, an Alabama banking corporation (the "Lender"), and
before me, executed the foregoing Amended and Restated Revolving
Credit Agreement dated as of November 10, 2004, among the
Borrower, Wachovia Bank, National Association, as Administrative
Agent and the Lenders signatories thereto, on behalf of the
Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
----------------------------------
Signature of Notary Public, State
and County Aforesaid
-----------------------------------
(Print, Type or Stamp Commissioned
Name of Notary Public)
____ Personally known ; OR
____ Produced identification
Type of identification
produced:________________
(Notary Seal)