EXHIBIT 10.9
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of October 31, 1997 (the
"AGREEMENT") by and among (a) NUCO2 INC., a Florida corporation (the "COMPANY"),
(b) SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION, a national banking
association ("SUNTRUST") and any other banks or other lending institutions that
are or will become parties to this Agreement (collectively, the "LENDERS" and
individually, a "LENDER"), and (c) SUNTRUST BANK, SOUTH FLORIDA, NATIONAL
ASSOCIATION, as agent for the Lenders (in such capacity, the "AGENT").
W I T N E S S E T H :
WHEREAS, the Company has requested, and SunTrust and the Lenders
have agreed to commit to a revolving credit facility to the Company on the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, for and in consideration of the sum of $10.00 in
hand paid by SunTrust and the Lenders to the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"ADDITIONAL GUARANTOR" shall have the meaning assigned to such term
in Section 5.13(a).
"ADVANCE" shall mean any advance by a Lender under the Commitments.
"AGENT" shall mean SunTrust Bank, South Florida, National
Association, as agent for the Lenders hereunder and under the other Loan
Documents, and each successor agent.
"AGENT FEE" shall mean the administrative fee described in the
Commitment Letter, payable on the Closing Date and thereafter annually in
advance to the Agent during the period prior to the Commitment Termination
Date.
"AFFILIATE" shall mean, with respect to any Person, any other Person
that, directly or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, such first Person. A
Person shall be deemed to control another Person if such first Person
possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether
through the ownership of voting securities, by contract or otherwise.
"AGREEMENT" shall mean this Revolving Credit Agreement, either as
originally executed or as hereafter amended, restated, renewed, extended,
supplemented or otherwise modified from time to time.
"ANNUALIZED EBITDA" shall mean EBITDA for the fiscal quarter ending
on the last day of such quarter, MULTIPLIED BY four.
"APPLICABLE COMMITMENT FEE PERCENTAGE" shall mean the percentage
designated below based on the Company's Senior Funded Debt to Annualized
EBITDA ratio for each fiscal quarter-end, as indicated below:
Senior Funded Debt to Applicable Commitment
Annualized EBITDA Ratio Fee Percentage
Less than 1.50:1.0 0.1875%
Greater than or equal to 1.50:1.0 0.25%
and less than 2.25:1.0
Greater than or equal to 2.25:1.0 0.375%
and less than 3.00:1.0
Greater than or equal to 3.00:1.0 0.50%
Until the first quarterly pricing adjustment, the Applicable Commitment Fee
Percentage shall be 0.375%, PROVIDED, HOWEVER, that if, subsequent to the
Closing Date but prior to making the first quarterly pricing adjustment,
the Company closes and lenders fund a subordinated debt issue of at least
$15,000,000, on terms and conditions satisfactory to the Agent and the
Lenders, the Applicable Commitment Fee Percentage will be reduced to 0.25%.
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"APPLICABLE LAW" shall mean, anything in Section 10.05
notwithstanding, (i) all applicable common law and principles of
equity and (ii) all applicable provisions of all (a) constitutions,
statutes, rules, regulations and orders of governmental bodies, (b)
Governmental Approvals, and (c) orders, decisions, judgments and
decrees of all courts and arbitrators.
"APPLICABLE MARGIN" shall mean the percentage designated
below based on the Company's Senior Funded Debt to Annualized EBITDA
ratio for each fiscal quarter-end, as indicated below:
Senior Funded Debt to Applicable Margin Applicable Margin
Annualized EBITDA Ratio (LIBOR Advance) (Base Rate Advance)
Less than 1.50:1.0 1.25% 0.00%
Greater than or equal to 1.50:1.0 1.75% 0.00%
and less than 2.25:1.0
Greater than or equal to 2.25:1.0 2.25% 0.00%
and less than 3.00:1.0
Greater than or equal to 3.00:1.0 2.75% 0.50%
Until the first quarterly pricing adjustment, the Applicable Margin on LIBOR
Advances and Base Rate Advances shall be 2.25% and 0.00% respectively,
PROVIDED, HOWEVER that if, subsequent to the Closing Date but prior to
making the first quarterly pricing adjustment, the Company closes and
lenders fund a subordinated debt issue of at least $15,000,000, on terms and
conditions satisfactory to the Agent and the Lenders, the Applicable Margin
on LIBOR Advances will be reduced to 1.75%.
"ASSET VALUE" shall mean, with respect to any property or
asset of the Company or any of its Subsidiaries as of any particular date,
an amount equal to the greater of (i) the then book value of such property
or asset as established in accordance with GAAP, and (ii) the then fair
market value of such property or asset as determined in good faith by the
board of directors of the Company or such Subsidiary.
"ASSIGNMENT AGREEMENT" shall mean an agreement in the form of
EXHIBIT J.
"ASSIGNMENT OF LEASES" shall mean that certain Assignment of
Leases agreement, dated as of the date hereof, executed by the Company and
each Subsidiary in favor of the Agent, assigning the Company's and each
Subsidiary's lessee's interest in any leasehold (except those leaseholds
whose terms prohibit assignments), as the same may be hereafter amended,
restated, renewed, extended, supplemented or otherwise modified from time to
time.
"AVAILABILITY" shall mean, with respect to any Commitment, at
any time, the amount by which such Commitment exceeds all Advances
outstanding under such Commitment.
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"BANKRUPTCY LAW" shall mean laws governing bankruptcy,
suspension of payments, reorganization, arrangement, adjustment of debts,
relief of debtors, dissolution, or other similar laws relating to the
enforcement of creditors' rights generally.
"BASE RATE" shall mean the higher of (i) the rate which
SunTrust designates from time to time as its prime lending rate, as in
effect from time to time, and (ii) the Federal Funds rate, as in effect from
time to time, plus one-half of one percent (2%) per annum (any changes in
such rates to be effective as of the date of any change in such rate). The
SunTrust prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. SunTrust
may make commercial loans or other loans at rates of interest at, above, or
below the SunTrust prime lending rate.
"BASE RATE ADVANCE" shall mean any advance made to the Company
by the Lenders at an interest rate equal to the Base Rate PLUS the
Applicable Margin for such advance.
"BORROWING" shall mean a borrowing under the Commitments
consisting of simultaneous Advances by the Lenders, including Swing Line
Borrowings.
"BUSINESS DAY" shall mean a day of the year other than
Saturday, Sunday or any other day on which the Agent is required to close.
"CAPITAL EXPENDITURES" shall mean, for any period,
expenditures made by the Company and its Subsidiaries to acquire or
construct fixed assets, property, plant and equipment (including renewals,
improvements and replacements, but excluding repairs) during such period
computed in accordance with GAAP.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act (42 U.S.C. ' 9601 ET SEQ.).
A "CHANGE IN CONTROL" shall be deemed to have occurred if (a)
any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2)
of the Exchange Act) shall become the "beneficial owner(s)" (as defined in
said Rule 13d-3) of more than forty percent (40%) of the shares of the
outstanding common stock of the Company entitled to vote for members of the
Company's board of directors; (b) a majority of the seats (other than vacant
seats) on the board of directors of the Company shall at any time be
occupied by persons who were neither (i) nominated by the board of directors
of the Company, nor (ii) appointed by directors so nominated; (c) any event
or condition shall occur or exist which requires or permits the holder(s) of
Indebtedness of the Company to require that such Indebtedness be redeemed,
repurchased, defeased, prepaid or repaid, in whole or in part, or the
maturity of such Indebtedness to be accelerated in any respect as a result
of a change in control provision of such Indebtedness; or (d) any person or
group (other than the group in control of the Company on the date hereof)
shall otherwise directly or indirectly control the Company.
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"CLOSING DATE" shall mean October 31, 1997.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"COLLATERAL" shall mean all real and personal property and
assets, now or hereafter existing, of the Company and its Subsidiaries over
which the Company or such Subsidiary has granted a Lien to the Agent
pursuant to the Security Documents, and all proceeds and products thereof.
"COMMITMENT" shall mean, for any Lender at any time, the
aggregate revolving credit facility severally established by such Lender in
favor of the Company pursuant to Section 2.01, including, without
duplication, in the case of SunTrust, the Swing Line, as the same may be
increased or decreased from time to time as a result of any reduction
thereof pursuant to Section 2.04, any assignment thereof pursuant to Section
10.08, or any amendment thereof pursuant to Section 10.02.
"COMMITMENT FEE" shall have the meaning set forth in Section
2.10(c).
"COMMITMENT LETTER" means that certain Letter Agreement, dated
as of September 16, 1997, executed by SunTrust and SunTrust Capital Markets,
Inc., and accepted and agreed to by the Company.
"COMMITMENT TERMINATION DATE" shall have the meaning set forth
in Section 2.01.
"COMMITTED AMOUNT" shall mean, with respect to any Facility,
the maximum principal amount of such Facility committed by the Lenders or
any of them, including any portion of the Committed Amount of such Facility
in which such Lender has purchased a participation as permitted by this
Agreement and excluding any portion of the Committed Amount of such Facility
in which such Lender has sold a participation as permitted by this
Agreement, as such amount may be reduced from time to time.
"COMPANY PLEDGE AGREEMENT" shall mean that certain Stock and
Notes Pledge Agreement (Company), dated as of the date hereof, executed by
the Company in favor of the Agent, as hereafter amended, restated,
supplemented or otherwise modified from time to time.
"COMPANY SECURITY AGREEMENT" shall mean that certain Security
Agreement (Company), dated as of the date hereof, executed by the Company in
favor of the Agent, as hereafter amended, restated, supplemented or
otherwise modified from time to time.
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"COMPANY TRADEMARK SECURITY AGREEMENT" shall mean that certain
Trademark Security Agreement (Company), dated as of the date hereof,
executed by the Company in favor of the Agent, as hereafter amended,
restated, supplemented or otherwise modified from time to time.
"CONSOLIDATED COMPANIES" shall mean, collectively, the Company
and all of its Subsidiaries.
"CONSOLIDATED EBIT" shall mean, for any fiscal period of the
Company, an amount equal to the sum of (a) Consolidated Net Income (Loss),
PLUS (b) to the extent deducted in determining Consolidated Net Income
(Loss), (i) provisions for taxes based on income of the Company and its
Subsidiaries determined on a consolidated basis in accordance with GAAP,
(ii) Interest Expense, and (iii) extraordinary items determined according to
GAAP.
"CONSOLIDATED NET INCOME (LOSS)" shall mean, for any fiscal
period of the Company, the net income (or loss) of the Company and its
Subsidiaries determined on a consolidated basis for such period (taken as a
single accounting period), in accordance with GAAP.
"CONSOLIDATED NET WORTH" shall mean, as of the date of
determination, the total shareholders' equity of the Company and its
Subsidiaries, determined in accordance with GAAP.
"CONTRACTUAL OBLIGATIONS" of any Person shall mean any
provision of any security issued by such Person or of any agreement,
instrument or undertaking under which such Person is obligated or by which
it or any of its property is bound.
"CONTRIBUTION AGREEMENT" shall mean that certain Contribution
Agreement, dated as of the date hereof, executed by the Company and each of
the Guarantors, substantially in the form of EXHIBIT E attached hereto, as
hereafter amended, restated, supplemented or otherwise modified from time to
time.
"DEFAULT" shall mean any event that, with the giving of
notice, or lapse of time, or both, would constitute an Event of Default.
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"EBITDA" shall mean, for any fiscal period of the Company, an
amount equal to the sum of Consolidated EBIT plus (i) depreciation and
amortization expenses to the extent deducted in determining such
Consolidated EBIT as determined on a consolidated basis in accordance with
GAAP, and (ii) the historical Consolidated EBITDA of any Person for such
period which accrued prior to the date such Person became a Subsidiary of
the Company or was merged into or consolidated with the Company or any of
its Subsidiaries or such Person's assets were acquired by the Company or any
of its Subsidiaries (and the underlying records of such Person shall be
audited to the extent the Company is required pursuant to Regulation S-X of
the SEC to present audited financial information for such Person in
documents filed by it with the SEC). If audited financial records are not
available for acquired companies, pro-forma financial statements (subject to
review and acceptance by the Required Lenders) will be substituted.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing material), relating
to pollution or protection of the environment and relating to public health
and safety, relating to (i) emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial toxic or
hazardous constituents, substances or wastes, including without limitation,
any Hazardous Substance (as such term is defined under CERCLA), petroleum
including crude oil or any fraction thereof, any petroleum product or other
waste, chemicals or substances regulated by any Environmental Law into the
environment (including without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), or (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of any Hazardous Substance (as such term is defined
under CERCLA), petroleum including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances regulated by any
Environmental Law, and (iii) underground storage tanks and related piping,
and emissions, discharges and releases or threatened releases therefrom,
such Environmental Laws to include, without limitation (i) the Clean Air Act
(42 U.S.C. ' 7401 ET SEQ.), (ii) the Clean Water Act (33 U.S.C. ' 1251 ET
SEQ.), (iii) the Resource Conservation and Recovery Act (42 U.S.C. ' 6901 ET
SEQ.), (iv) the Toxic Substances Control Act (15 U.S.C. ' 2601 ET SEQ.) and
(v) CERCLA.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974 and all rules and regulations promulgated pursuant thereto, as the
same may from time to time be supplemented or amended.
"ERISA AFFILIATE" shall mean any trade or business (whether
incorporated or unincorporated) which together with the Company is treated
as a single employer under Section 414(b), (c), (m) or (o) of the Code.
"EVENT OF DEFAULT" shall have the meaning set forth in Article
VIII.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute thereto.
"EXECUTIVE OFFICER" shall mean each of the executive officers
of the Company and any Person hereafter holding the following office or
offices which, individually or collectively, are assigned substantially
similar duties: Chairman, Chief Executive Officer, President, Chief
Financial Officer, Executive Vice President, Chief Operating Officer, and
Vice President of Administration.
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"EXISTING CREDIT AGREEMENT" shall mean that certain $30
million Revolving Credit Agreement, dated as of December 22, 1995, by and
between the Company and NationsBank of Florida, N.A.
"FACILITIES" shall mean, collectively, the Commitments
described hereunder.
"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by it.
"FEES" shall mean, collectively, the Agent Fee and the
Commitment Fee.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any fiscal
period of the Company, the ratio of (a) (1) EBITDA for the fiscal period
ending on the last day of such period, PLUS (2) Rent Expense for the fiscal
period ending on the last day of such period, MINUS (3) Maintenance Capital
Expenditures for the fiscal period ending on the last day of such period, to
(b) Fixed Charges for the fiscal period ending on the last day of such
period.
"FIXED CHARGES" shall mean consolidated interest expense for
the period of determination (including both capitalization and
non-capitalized interest and the interest component of Capital Leases) plus
minimum rent expenses under operating leases for such period, calculated on
a consolidated basis in accordance with GAAP plus 4% of quarter end
outstanding Borrowings under this Agreement.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession in the United States of America, which are
applicable to the circumstances as of the date of determination.
"GOVERNMENTAL APPROVAL" shall mean any order, permission,
authorization, consent, approval, license, franchise, permit or validation
of, exemption by, registration or filing with, or report or notice to, any
governmental agency or unit, or any public commission, board or authority.
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"GUARANTOR PLEDGE AGREEMENT" shall mean that certain Stock and
Notes Pledge Agreement (Guarantors), dated as of the date hereof, executed
by each Guarantor in favor of the Agent, as hereafter amended, restated,
supplemented or otherwise modified from time to time.
"GUARANTOR SECURITY AGREEMENT" shall mean that certain
Security Agreement (Guarantors), dated as of the date hereof, executed by
each Guarantor in favor of the Agent, as hereafter amended, restated,
supplemented or otherwise modified from time to time.
"GUARANTOR TRADEMARK SECURITY AGREEMENT" shall mean that
certain Trademark Security Agreement (Guarantors), dated as of the date
hereof, executed by each Guarantor in favor of the Agent, as hereafter
amended, restated, supplemented or otherwise modified from time to time.
"GUARANTORS" shall mean, collectively, each Subsidiary of the
Company that has executed a Guaranty Agreement as of the Closing Date,
together with all other Subsidiaries that hereafter execute a Guaranty
Agreement, and their respective successors and permitted assigns.
"GUARANTOR" shall mean any of the Guarantors.
"GUARANTY AGREEMENT" shall mean that certain Guaranty
Agreement, dated as of the date hereof, executed by each of the Guarantors
in favor of the Lenders and the Agent, substantially in the form of EXHIBIT
D attached hereto, as hereafter amended, restated, supplemented or otherwise
modified from time to time.
"GUARANTY DOCUMENTS" shall mean, collectively, the Guaranty
Agreement, and each other guaranty agreement, mortgage, deed of trust,
assignment of lease, security agreement, pledge agreement, or other security
or collateral document guaranteeing or securing the Obligations, as the same
may be amended, restated, or supplemented from time to time, and the
Contribution Agreement executed by each of the Guarantors, as the same may
be amended, restated or supplemented from time to time.
"GUARANTY OBLIGATIONS" shall mean the obligation of the
Guarantors to the Lenders and the Agent, as set forth in the Guaranty
Agreement.
"HARSCO ARRANGEMENT" shall mean the Company's currently
contemplated financing arrangement with Xxxxxx-Xxxxxxx Gas Equipment
division of Harsco Corporation, a Delaware corporation ("HARSCO"), or any
other current or future subsidiaries of Harsco.
"HAZARDOUS SUBSTANCE" shall have the meaning assigned to that
term in CERCLA.
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"INDEBTEDNESS" shall mean (i) indebtedness for borrowed money
or for the deferred purchase price of property or services (other than trade
accounts payable on customary terms in the ordinary course of business),
(ii) financial obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) financial obligations as lessee under leases
which shall have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (iv) financial
obligations as the issuer of capital stock redeemable in whole or in part at
the option of any Person other than such issuer, at a fixed and determinable
date or upon the occurrence of an event or condition not solely within the
control of such issuer, (v) all obligations (contingent or otherwise) with
respect to interest rate and currency leasing agreements, (vi) reimbursement
obligations (contingent or otherwise) with respect to amounts under letters
of credit, bankers acceptances and similar instruments, (vii) financial
obligations under purchase money mortgages, (viii) financial obligations
under asset securitization vehicles, (ix) conditional sale contracts and
similar title retention instruments with respect to property acquired, and
(x) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
financial obligations of others of the kinds referred to in clauses (i)
through (ix) above, except to the extent such guaranties are limited to a
lesser amount.
"INTEREST EXPENSE" shall mean, for any fiscal period of the
Company, total interest expense (including, without limitation, interest
expense attributable to capitalized leases in accordance with GAAP) of the
Company and its Subsidiaries, on a consolidated basis, for such period.
"INTEREST PERIOD" shall mean (i) as to any LIBOR Advance, the
interest period selected by the Company pursuant to Section 2.12(a), and
(ii) as to any Base Rate Advance, the interest period requested by the
Company and agreed to by the participating Lenders pursuant to Section
2.12(b), and (iii) as to any Swing Rate Advance, the interest period
requested by the Company and agreed to by SunTrust pursuant to Section 2.03.
"INVESTMENT" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other
than the creation of receivables in the ordinary course of business) or
capital contribution by such Person (by means of transfers of property to
others or payments for property or services for the account or use of
others, or otherwise) to any Person, or any direct or indirect purchase or
other acquisition by such Person of, or of a beneficial interest in, capital
stock, partnership interests, bonds, notes, debentures or other securities
issued by any other Person.
"LENDERS" shall have the meaning set forth in the first
paragraph of this Agreement.
"LENDING OFFICE" shall mean for each Lender the office such
Lender may designate in writing from time to time to the Company and the
Agent with respect to Base Rate Advances and LIBOR Advances.
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"LIBOR" shall mean, for any Interest Period, the offered rates
for deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Reuters Screen LIBOR Page as of 11:00 a.m., London time, on
the day that is two London banking days prior to the Interest Period. If at
least two such rates appear on the Reuters Screen LIBOR Page, the rate for
that Interest Period will be the arithmetic mean of such rates, and in
either case as such rates may be adjusted for any applicable reserve
requirements.
"LIBOR ADVANCE" shall mean any advance made to the Company by
the Lenders at an interest rate equal to LIBOR PLUS the Applicable Margin
for such advance.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien, assignment or charge of any kind or description and shall
include, without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the nature
thereof including any lease or similar arrangement with a public authority
executed in connection with the issuance of industrial development revenue
bonds or pollution control revenue bonds, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code (or
comparable law) of any jurisdiction naming the owner of the asset to which
such lien applies as a debtor (other than a filing which does not evidence
an outstanding secured obligation, or a commitment to make advances or to
incur any other obligation of any kind).
"LOAN DOCUMENTS" shall mean this Agreement, each Exhibit and
Schedule to this Agreement, the Notes, the Swing Line Note, the Guaranty
Documents, the Security Documents, and each other document, instrument,
certificate and opinion executed and delivered in connection with the
foregoing, each as amended, restated, supplemented or otherwise modified
from time to time as provided in Section 10.02.
"MAINTENANCE CAPITAL EXPENDITURES" shall mean Capital
Expenditures other than Capital Expenditures made (i) in connection with any
business expansion of the Company and any of its Subsidiaries, (ii) in
connection with any Investment made by the Company after the Closing Date,
or (iii) in connection with any other acquisition or business expansion by
the Company and any of its Subsidiaries.
"MARGIN REGULATIONS" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time.
"MATERIALLY ADVERSE EFFECT" shall mean a materially adverse
change in the operations, business, property or assets of, or in the
condition (financial or otherwise) of, the Company and its Subsidiaries,
taken as a whole.
"MAXIMUM PERMISSIBLE RATE" shall mean, with respect to
interest payable on any amount, the rate of interest on such amount that, if
exceeded, could, under Applicable Law, result in (i) civil or criminal
penalties being imposed on any Lender or (ii) any Lender being unable to
enforce payment of (or if collected, to retain) all or part of such amount
or the interest payable thereon.
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"MINIMUM NET WORTH" shall have the meaning set forth in
Section 7.04 hereof.
"MORTGAGED PROPERTY" shall mean, collectively, all parcels of
real property owned or leased by the Company or any of its Subsidiaries
which is subject to a Mortgage or which is assigned under an Assignment of
Leases.
"MORTGAGES" shall mean, collectively, all of the mortgages,
deeds of trust or deeds to secure debt hereafter executed in favor of the
Agent by the Company or any Subsidiary, as the same may be hereafter
amended, restated, renewed, extended, supplemented or otherwise modified
from time to time.
"MULTIEMPLOYER PLAN" shall mean a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA as to which the Company, any
Subsidiary or any ERISA Affiliate is obligated to make, has made, or will be
obligated to make contributions on behalf of participants who are or were
employed by any of them.
"NET WORTH" shall mean, at any date, the net worth of the
Consolidated Companies, determined in accordance with GAAP as determined on
such date.
"NOTE" shall mean a promissory note of the Company payable to
the order of any Lender in substantially the form of EXHIBIT A hereto,
evidencing the maximum aggregate principal indebtedness of the Company to
such Lender under such Lender's Commitment, either as originally executed or
as it may be from time to time supplemented, modified, amended, renewed or
extended. The term "Note" shall include any Swing Line Note, unless the
context otherwise requires.
"NOTICE OF BORROWING" shall have the meaning set forth in
Section 2.02(a) hereof.
"NOTICE OF INTEREST RATE CONVERSION" shall have the meaning
set forth in Section 2.02(b) hereof.
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"OBLIGATIONS" shall mean all amounts owing to the Agent or any
Lender pursuant to the terms of this Agreement or any other Loan Document,
including without limitation, all Advances (including all principal and
interest payments due thereunder), Fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Company and its Subsidiaries, covenants and duties of the Company to the
Lenders and the Agent of every kind, nature and description, direct or
indirect, absolute or contingent, due or not due, in contract or tort,
liquidated or unliquidated, arising under this Agreement or under the other
Loan Documents, by operation of law or otherwise, now existing or hereafter
arising or whether or not for the payment of money or the performance or the
nonperformance of any act, including, but not limited to, all debts,
liabilities and obligations owing by the Company to others which the Lenders
may have obtained by assignment or otherwise, and all damages which the
Company may owe to the Lenders and the Agent by reason of any breach by the
Company of any representation, warranty, covenant, agreement or other
provision of this Agreement or of any other Loan Document.
"OTHER CLAIM" shall have the meaning set forth in Section 5.07
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and
any successor thereto.
"PERSON" shall mean an individual, corporation, partnership,
trust, limited liability company or unincorporated organization, a
government or any agency or political subdivision thereof.
"PLAN" shall mean any employee benefit plan, program,
arrangement, practice or contract, maintained by or on behalf of the Company
or an ERISA Affiliate, which provides benefits or compensation to or on
behalf of employees or former employees, whether formal or informal, whether
or not written, including but not limited to the following types of plans:
(i) EXECUTIVE ARRANGEMENTS - any bonus, incentive
compensation, stock option, deferred compensation, commission,
severance, "golden parachute", "rabbi trust", or other
executive compensation plan, program, contract, arrangement or
practice;
(ii) ERISA PLANS - any "employee benefit plan" as
defined in ERISA, including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase
pension plan, savings or thrift plan, stock bonus plan,
employee stock ownership plan, Multiemployer Plan, or any
plan, fund, program, arrangement or practice providing for
medical (including post-retirement medical), hospitalization,
accident, sickness, disability, or life insurance benefits;
(iii) OTHER EMPLOYEE FRINGE BENEFITS - any stock
purchase, vacation, scholarship, day care, prepaid legal
services, severance pay or other fringe benefit plan, program,
arrangement, contract or practice.
"PRO RATA SHARE" shall mean, for any Lender, with respect to
the Facilities (whether one or more), the proportion expressed as a
percentage equal to (1) the sum of such Lender's portion of the Committed
Amounts of such Facilities (including, without duplication, any portion of
the Committed Amounts of such Facilities in which such Lender has purchased
a participation and excluding, without duplication, any portion of the
Committed Amounts of such Facilities in which such Lender has sold a
participation), divided by (2) the sum of the Committed Amounts of such
Facilities.
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"REGULATION U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time to time, and
any regulation successor thereto.
"RENT EXPENSE" shall mean all expenses for the rental of all
property, real or personal, by the Company and any of its Subsidiaries,
determined in accordance with GAAP.
"REQUIRED LENDERS" shall mean Lenders whose combined Pro Rata
Shares as of the Closing Date of the Facilities are at least sixty-six and
two-thirds percent (66 2/3%) of the Committed Amounts of such Facilities.
"SECURITY DOCUMENTS" shall mean, collectively, the Mortgage,
the Assignment of Leases, the Company Pledge Agreement, the Company Security
Agreement, the Company Trademark Security Agreement, the Guarantor Pledge
Agreement, the Guarantor Security Agreement, the Guarantor Trademark
Security Agreement, all UCC financing statements and fixture filings naming
the Company or any of its Subsidiaries as debtor and the Agent as secured
party, all stock certificates evidencing shares of stock pledged to the
Agent, together with undated stock powers or other appropriate instruments
of transfer executed in blank, and all filings in the U.S. Patent and
Trademark Office which are required to be made under the Loan Documents.
"SENIOR DEBT COVERAGE RATIO" shall mean, for any fiscal period
of the Company, the ratio of (a) Senior Funded Debt as of the last day of
such fiscal period to (b) Annualized EBITDA.
"SENIOR DEBT LEVERAGE RATIO" shall mean, for any fiscal period
of the Company, the ratio of (a) Senior Funded Debt as of the last day of
such fiscal period to (b) Total Capitalization as of the last day of such
fiscal period.
"SENIOR FUNDED DEBT" shall mean all indebtedness for money
borrowed, purchase money mortgages, capitalized leases, outstandings under
asset securitization vehicles, conditional sales contracts and similar title
retention debt instruments, including any current maturities of such
indebtedness, which by its terms matures more than one year from the date of
any calculation thereof and/or which is renewable or extendable at the
option of the obligor to a date beyond one year from such date to include
any debt outstanding under the Harsco Arrangement, on such terms as shall be
acceptable to the Lenders.
"SENIOR SUBORDINATED DEBT OFFERING" shall mean the offering of
senior Subordinated Debt, as described in that certain Senior Subordinated
Note Purchase Agreement, dated as of October 31, 1997, between the Company
and the Guarantors and the Investors listed therein.
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"SUBORDINATED DEBT" shall mean all Indebtedness of the Company
subordinated to all obligations of the Company arising under this Agreement,
the Notes, and the Swing Line Note, on terms and conditions satisfactory in
all material respects to the Agent and the Required Lenders, including
without limitation, with respect to interest rates, payment terms,
maturities, amortization schedules, covenants, defaults, remedies, and
subordination provisions, as evidenced by the written approval of the Agent
and Required Lenders.
"SUBSIDIARY" of any Person shall mean any corporation,
partnership or other Person of which a majority of all the outstanding
capital stock (including director's qualifying shares) or other securities
or ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions is, at
the time as of which any such determination is being made, directly or
indirectly owned by such Person, or by one or more of the Subsidiaries of
such Person, and which corporation, partnership or other Person is
consolidated with such Person for financial reporting purposes. Unless
otherwise specified, "Subsidiaries" and "Subsidiary" shall mean the
Subsidiaries and a Subsidiary, respectively, of the Company.
"SUPPLEMENTAL DOCUMENTS" shall mean the supplements to the
following documents: the Guaranty Agreement, the Contribution Agreement, the
Guarantor Security Agreement, the Guarantor Pledge Agreement and the
Guarantor Trademark Security Agreement, as such supplements are more
specifically described and shown in each respective document.
"SWING LINE" shall have the meaning assigned to such term in
Section 2.03(a).
"SWING LINE ADVANCE" shall mean a Borrowing pursuant to
Section 2.03 consisting of a Swing Line Loan made by SunTrust to the Company
on the same date and interest rate basis.
"SWING LINE BORROWING" shall mean a Borrowing consisting or to
consist of a Swing Line Advance.
"SWING LINE BORROWING NOTICE" shall mean the notice given by
the Company to SunTrust requesting a Swing Line Advance as provided in
Section 2.03(b).
"SWING LINE LOANS" shall mean, collectively, the loans made to
the Company by SunTrust pursuant to Section 2.03.
"SWING LINE NOTE" shall mean the promissory note evidencing
the Swing Line Loans substantially in the form of EXHIBIT B and duly
completed in accordance with the terms hereof.
"SWING RATE" shall mean the rate of interest specified by
SunTrust to the Company as being applicable to a Swing Line Loan requested
by the Company pursuant to Section 2.03(b).
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"SWING RATE ADVANCE" shall mean an Advance made or outstanding
as a Swing Line Loan bearing interest based on the Swing Rate as provided in
Section 2.11(c).
"SWING RATE QUOTE" shall mean an offer by SunTrust to make a
Swing Line Loan to the Company at the Swing Rate specified therein for the
interest period to be applicable to the Swing Line Loan as specified
therein, pursuant to Section 2.03(b).
"TAX" shall mean, with respect to any person or entity, any
federal, state or foreign tax, assessment, customs duties, or other
governmental charge, levy or assessment (including any withholding tax) upon
such person or entity or upon such person's or entity's assets, revenues,
income or profits, other than income and franchise taxes imposed upon any
Lender by the jurisdictions (or any political subdivision thereof) in which
such Lender has its principal office or office from which its Advances are
made, or in which such Lender is incorporated.
"TOTAL CAPITALIZATION" shall mean the sum of shareholders'
equity PLUS Subordinated Debt PLUS Senior Funded Debt.
"UNITED STATES" or "U.S." means the United States of America,
its fifty (50) States and the District of Columbia.
"U.S. DOLLAR" "DOLLAR" and "$" shall mean lawful money of the
United States of America.
SECTION 1.02. CALCULATIONS; ACCOUNTING TERMS. Calculations of
all financial data herein shall be on a consolidated basis for the Company and
all Subsidiaries; and all accounting terms used herein shall, unless otherwise
expressly indicated, be in reference to the Company and its Subsidiaries, if
any, on a consolidated basis, which may be accounted for in accordance with the
equity investment method (to the extent such method is in accordance with GAAP),
and shall have the meanings ascribed thereto under and be interpreted in
accordance with GAAP. All calculations and determinations under Article VII
shall be made in accordance with accounting principles consistent with those
followed in the preparation of the annual or interim financial statements, as
applicable, referred to in Section 5.02.
SECTION 1.03. OTHER DEFINITIONAL PROVISIONS.
(a) Except as otherwise specified herein, all references
herein (A) to any Person, other than the Company or any Subsidiary, shall be
deemed to include such Person's successors, transferees and assignees, (B) to
the Company or any Subsidiary, shall be deemed to include such Person's
successors, (C) to any Applicable Law specifically defined or referred to herein
shall be deemed references to such Applicable Law as the same may be amended or
supplemented from time to time, and (D) to any contract defined or referred to
herein shall be deemed references to such contract (and, in the case of any
instrument, any other instrument issued in substitution therefor) as the terms
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thereof may have been or may be amended, supplemented, waived or otherwise
modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof"
and "hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and "Section", "Subsection",
"Schedule" and "Exhibit" shall refer to Sections and Subsections of, and
Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender
includes the masculine or feminine, and the singular number includes the plural,
and vice versa.
(d) All terms defined in this Agreement shall have the defined
meanings when used in any Note or Swing Line Note or, except as otherwise
expressly stated therein, any certificate, opinion or other Loan Document.
SECTION 1.04. CAPTIONS. Article and Section captions in this
Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
ARTICLE II
AMOUNT AND TERMS OF LOANS
SECTION 2.01. COMMITMENTS AND NOTES. Subject to and upon the
terms and conditions set forth in this Agreement, each of the Lenders severally
establishes until October 31, 2000, unless otherwise extended pursuant to
Section 2.12 below (October 31, 2000, or such later date as the Commitments have
been extended pursuant to Section 2.13, is hereinafter referred to as the
"COMMITMENT TERMINATION DATE") a revolving credit facility in favor of the
Company in aggregate principal at any one time outstanding not to exceed the sum
set forth opposite such Lender's name below, as the same may be reduced from
time to time pursuant to the terms hereof:
SunTrust Bank, South Florida, $50,000,000 100%
National Association
TOTAL: $50,000,000 100%
===
Within the limits of the Commitments, the Company may borrow, repay and reborrow
under the terms of this Agreement; PROVIDED, HOWEVER, that (i) the aggregate
principal amount of each Borrowing shall not be less than $1,000,000 and shall
be in integral multiples of $500,000, (ii) all of the Company's representations
and warranties are true and correct on and as of the date of each Borrowing,
(iii) the Company may neither borrow nor reborrow should there exist a Default
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or an Event of Default, or such would result from the Borrowing, and (iv) the
aggregate outstanding amount of Advances after giving effect to each Borrowing
shall not exceed the Committed Amount of the Commitments. At no time shall the
number of Borrowings outstanding under this Article II exceed six; PROVIDED
that, for the purpose of determining the number of Borrowings outstanding, all
Borrowings consisting of Base Rate Advances under these Facilities shall be
considered as one Borrowing. Borrowings under the Commitments shall be made
through simultaneous Advances by the Lenders, and the amount of each such
Borrowing shall be prorated among such Lenders based on the percentages set
forth above. All Advances by each Lender shall be evidenced by a single Note
payable to such Lender in the form of EXHIBIT A attached hereto with appropriate
insertions. Each Note shall be dated the date hereof, shall be payable to the
order of the respective Lender in a principal amount equal to the amount set
forth opposite such Lender's name above, shall bear interest as provided for in
this Agreement and shall mature on the Commitment Termination Date or sooner
should the principal and accrued interest thereon be declared immediately due
and payable as provided for hereinafter. No Lender shall have any obligation to
advance funds in excess of an amount equal to the percentage set forth opposite
such Lender's name above multiplied by the Committed Amount of the Commitments.
SECTION 2.02. METHOD OF BORROWING UNDER THE COMMITMENTS. (a)
The Company shall give the Agent written or telephonic notice (promptly
confirmed in writing) of any requested Borrowing under the Commitments,
substantially in the form of EXHIBIT C attached hereto (a "NOTICE OF
BORROWING"), specifying (i) the amount of the Borrowing, and (ii) the date the
proposed Borrowing is to be made (which shall be a Business Day). Each Notice of
Borrowing shall be given to the Agent (x) in the case of Base Rate Advances, not
later than 11:00 a.m. (Ft. Lauderdale, Florida time) the same Business Day of
such requested Borrowing or (y) in the case of LIBOR Advances, at least three
Business Days before the date such requested Borrowing is to be made (which
shall be a Business Day). The Agent shall be entitled to rely on any telephonic
Notice of Borrowing which it believes in good faith to have been given by an
Executive Officer of the Company, and any Advances made by the Lenders based on
such telephonic notice shall, when deposited by the Agent to the Company's
Account No. 0128320009032 at SunTrust, be Advances for all purposes hereunder.
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(b) Whenever the Company desires to convert all or a portion
of an outstanding Borrowing consisting of Base Rate Advances into one or more
Borrowings consisting of LIBOR Advances, or to continue a Borrowing consisting
of LIBOR Advances for a new Interest Period, it shall give the Agent written
notice or telephonic notice (promptly confirmed in writing) at least three
Business Days before the date of such conversion, specifying each such Borrowing
to be converted into or continued as LIBOR Advances. Such notice (a "NOTICE OF
INTEREST RATE CONVERSION") shall be given prior to 11:00 a.m. (Ft. Lauderdale,
Florida time) on the date specified. Each such Notice of Interest Rate
Conversion shall be irrevocable and shall specify the aggregate principal amount
of the Advances to be converted or continued, the date of such conversion or
continuation and the Interest Period applicable thereto. If, upon the expiration
of any Interest Period in respect of any Borrowing, the Company shall have
failed to deliver the Notice of Interest Rate Conversion, the Company shall be
deemed to have elected to convert or continue such Borrowing to a Borrowing
consisting of Base Rate Advances. So long as any Default or Event of Default
shall have occurred and be continuing, no Borrowing may be converted into or
continued as (upon expiration of the current Interest Period) LIBOR Advances
unless the Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Borrowing of LIBOR Advances shall be permitted
except on the last day of the Interest Period in respect thereof.
(c) Upon receipt of a Notice of Borrowing or a Notice of
Interest Rate Conversion from the Company, the Agent shall notify the Lenders by
telephone, which notice shall be promptly confirmed in writing (including by
telecopier) by the Agent to such Lenders, of such Notice of Borrowing or Notice
of Interest Rate Conversion and of each such Lender's PRO RATA portion of the
requested Borrowing or Interest Rate Conversion. Not later than 1:00 p.m. (Ft.
Lauderdale, Florida time) on the date specified for the Borrowing or Interest
Rate Conversion in the Notice of Borrowing or Notice of Interest Rate Conversion
and in the notice to such Lender provided by the Agent, each Lender shall
promptly make its portion of the Borrowing available to the Agent in immediately
available funds, and the Agent shall make available to the Company the amount so
received by the Agent from the Lenders not later than 3:00 p.m. (Ft. Lauderdale,
Florida time) on such date. In the event any Lender shall fail to make any
Advance available to the Agent in immediately available funds by 1:00 p.m. (Ft.
Lauderdale, Florida time) on the date specified, and provided no Default or
Event of Default shall have occurred and be continuing, the Agent may advance
such Lender's portion of the Borrowing on behalf of such Lender, in which event
such Lender shall promptly reimburse the Agent for the amount thereof plus (i)
if the amount of such Lender's Advance is reimbursed to the Agent on or prior to
the calendar day next succeeding the date of the Borrowing, interest on such
amount at the rate equal to the Federal Funds Rate, or (ii) if the amount of
such Lender's Advance is reimbursed to the Agent after the calendar day next
succeeding the day of the Borrowing, interest on such amount at the Base Rate;
PROVIDED, HOWEVER, that any such reimbursement by the Company to the Agent shall
not relieve such Lender who fails to make any Advance as provided above from
liability to the Company for such failure. The amount of interest payable as a
result of any Lender's failure to make any Advance available shall be calculated
on the basis of a year of 360 days and paid for the actual number of days such
failure has continued (including the date of payment). If the Company fails to
reimburse the Agent as provided in this Section 2.02(c), then the Agent shall
have the right to deduct any amounts owed to it hereunder from Advances it makes
to the Company in subsequent Borrowings made by the Company.
SECTION 2.03. SWING LINE SUBFACILITY. (a) Notwithstanding
anything contained herein to the contrary, SunTrust hereby establishes a
subfacility within its Commitment of up to an aggregate of $2,000,000 (the
"SWING LINE") to accommodate the short term borrowing needs of the Company.
Sections 3.01 and 3.02 shall apply equally to Borrowings made through the Swing
Line and Borrowings or Interest Rate Conversions requested or made through
Section 2.02. The aggregate amount of all Borrowings under the Swing Line
Facility shall not at any time exceed $2,000,000, and to the extent any
Borrowing under the Swing Line Facility would cause such a result after giving
effect thereto, the Company shall be required to request such Borrowing under
Section 2.02(a) hereof. Any Borrowing made by the Company under the Swing Line
shall be for a period not to exceed 30 days.
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(b) Whenever the Company desires to make a Borrowing under the
Swing Line, it shall give SunTrust prior written or telephonic notice (promptly
confirmed in writing) of any requested Borrowing under the Swing Line (each a
"SWING LINE BORROWING NOTICE") prior to 11:00 a.m. (Ft. Lauderdale, Florida
time) on the date of such Borrowing. Each Swing Line Borrowing Notice shall
specify the aggregate principal amount of the Swing Line Borrowing, the date of
such Swing Line Borrowing (which shall be a Business Day) and the interest
period to be applicable thereto. SunTrust shall make available to the Company
the amount of the Borrowing requested in the Swing Line Borrowing Notice not
later than 3:00 p.m. (Ft. Lauderdale, Florida time) on such date, PROVIDED that
(i) no Default or Event of Default shall have occurred and be continuing and
(ii) the aggregated principle amount of the Swing Line Borrowings, including the
requested Borrowing under such Swing Line Borrowing Notice, shall be no greater
than $2,000,000.
(c) The Company's obligation to pay the principal of, and
interest on, the Swing Line Loans shall be evidenced by the records of SunTrust
and by the Swing Line Note payable to SunTrust (or its assignee) completed in
conformity with this Agreement.
(d) The outstanding principal amount under each Swing Line
Loan shall be due and payable in full on the Commitment Termination Date.
(e) Each Borrowing under the Swing Line shall deemed to be
made under SunTrust's Commitment to the extent of any Availability thereunder on
the date such Borrowing is made.
SECTION 2.04. PREPAYMENT OF BORROWINGS UNDER THE COMMITMENTS.
The Company shall have the right to prepay Borrowings under the Commitments, in
whole at any time or in part from time to time, without premium or penalty (but,
in the case of LIBOR Advances, subject to the funding indemnification provisions
of Section 2.16), PROVIDED that (i) the Company gives the Agent prior written
notice of such prepayment, specifying the date such prepayment will occur (which
shall be a Business Day), (x) in the case of any Base Rate Advance, at least one
Business Day in advance of such date or (y) in the case of any LIBOR Advance
during an Interest Period, at least three Business Days in advance of such date,
(ii) each partial prepayment shall be in an amount of at least $500,000 and
integral multiples of $100,000, (iii) prepayments shall be applied to repay
Borrowings under the Commitments in the order set forth in Section 2.07 hereof,
and (iv) such prepayments include interest accrued, on the principal amount
prepaid, to the prepayment date.
SECTION 2.05. MANDATORY PREPAYMENTS.
(a) The Company shall make a mandatory prepayment from 100
percent of the after-tax net proceeds received by the Company from any sale or
other disposition by the Company of any of its assets, PROVIDED, HOWEVER, that
such prepayment provision shall not apply to the sales of inventory by the
Company in the ordinary course of business or assets disposed of as part of the
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Company's standard acquisition procedures (such assets to include high-pressure
tanks, motorized vehicles, including cars and trucks, and lines of business
other than carbon dioxide that may be obtained by the Company as part of the
group of assets of any corporation or other business entity the Company may
acquire), and certain other sales to be agreed upon in writing by the Company
and the Required Lenders.
(b) The Company shall make a mandatory prepayment from 100
percent of net proceeds of any offering of debt; PROVIDED, HOWEVER, that this
provision shall not include (i) proceeds from the Senior Subordinated Debt
Offering, (ii) proceeds from the Harsco Arrangement, and (iii) any purchase
money obligations paid to the Company.
SECTION 2.06. VOLUNTARY REDUCTION OF COMMITMENTS. Upon at
least five (5) Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) to the Agent, which notice shall specify (1) the
amount by which such Commitments are to be terminated and (2) the date such
termination is to occur, the Company shall have the right, without premium or
penalty, to terminate the Commitments, in whole or in part, provided that (a)
any partial termination pursuant to this Section 2.06 shall be in an amount of
at least $5,000,000 and integral multiples of $5,000,000 and (b) any such
termination shall apply to reduce proportionately and permanently the
Commitments. If the aggregate principal amount of Advances exceeds the amount of
the Commitments as so reduced, the Company shall immediately repay Borrowings
under such Commitments by an amount equal to such excess, together with accrued
but unpaid interest on such excess.
SECTION 2.07. ALLOCATION OF PAYMENTS.
(a) All principal and interest payments and prepayments made
with respect to Advances and payments in respect of Commitment Fees shall be
allocated among all outstanding Commitments and Advances to which such payments
relate, proportionately based on the Lenders' Pro Rata Shares of the
Commitments.
(b) All payments made to the Agent by the Company shall be
applied in the following order: (a) FIRST, to the reimbursement of any fees
which are due and payable, and expenses incurred by and then due and payable to,
the Agent, in accordance with the terms of this Agreement, in connection with
the administration of the Commitments and otherwise (to the extent any such fees
are payable by the Company pursuant to the terms of this Agreement); (b) SECOND,
to the payment of any accrued and unpaid interest and Fees which are due and
payable, PRO RATA to the Lenders based upon their respective Pro Rata Shares of
the Commitments; and (c) FINALLY, to the payment of outstanding Advances.
SECTION 2.08. TERMINATION OF COMMITMENTS. The unpaid principal
balance and all accrued and unpaid interest on the Notes and the Swing Line Note
will be due and payable upon the first of the following dates or events to
occur: (i) acceleration of the maturity of any Note or the Swing Line Note in
accordance with the remedies contained in Section 8.02 of this Agreement; or
(ii) upon the expiration of the Commitments on the Commitment Termination Date.
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SECTION 2.09. USE OF PROCEEDS. The proceeds of each Borrowing
under the Commitments will be used by the Company solely to refinance
outstanding debt, to finance acquisitions, to make capital expenditures, and to
provide for the working capital and general corporate needs of the Company.
SECTION 2.10. FEES.
(a) On the Closing Date, the Company shall pay to SunTrust
Capital Markets, Inc. the fees described in the Commitment Letter, which fees
shall be fully earned and nonrefundable when paid.
(b) On the Closing Date and on each anniversary thereof, if
the Commitments are extended pursuant to Section 2.12, the Company shall pay to
the Agent the Agent Fee, which fee shall be fully earned and nonrefundable when
paid.
(c) The Company shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share to each Lender (subject to the
last sentence hereof), a commitment fee (the "COMMITMENT FEE") for the period
commencing on the Closing Date to and including the Commitment Termination Date,
computed at a rate equal to the Applicable Commitment Fee Percentage multiplied
by the average daily unused portion of the Commitments of the Lenders, such fee
being payable quarterly in arrears on the last day of each calendar quarter,
commencing on December 31, 1997, and on the Commitment Termination Date. The
Commitment Fee will be calculated on the basis of a 360-day year for the actual
number of days elapsed.
(d) The Company hereby authorizes the Agent to withdraw an
amount equal to the fees which are due and payable under clauses (a), (b) or (c)
above from any of its accounts with the Agent if not paid on the due date for
such fees. The Agent shall give the Company notice of any such withdrawals,
PROVIDED, HOWEVER, that failure by the Agent to give the Company notice shall
not prevent the Agent from making any such withdrawals under this Section.
SECTION 2.11. INTEREST.
(a) For Borrowings other than those made under the Swing Line,
the Company shall be entitled to select between the following two options to
establish the rate of interest at which the unpaid principal amount of the Notes
shall accrue:
(i) Base Rate Advances B interest shall accrue at the
Base Rate plus the Applicable Margin; or
(ii) LIBOR Advances B interest shall accrue at LIBOR
plus the Applicable Margin.
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(b) Interest on the Notes for Borrowings other than those made
under the Swing Line shall be calculated on the basis of a 360-day year and
shall be payable to the Lenders as follows:
(i) Base Rate Advances -- on the last day of every
quarter in arrears; and
(ii) LIBOR Advances -- at the expiration of each
Interest Period and, with respect to advances made for an Interest
Period longer than three months, also on the last day of each
three-month period prior to the expiration of the Interest Period.
(c) For Borrowings made under the Swing Line, the rate of
interest at which the unpaid principal shall accrue on the Swing Line Note shall
be equal to the Base Rate on the applicable day of the Swing Line Borrowing
Notice.
SECTION 2.12. INTEREST PERIODS.
(a) In connection with the making or continuation of, or
conversion into, each Borrowing of LIBOR Advances, the Company shall select an
Interest Period to be applicable to such LIBOR Advance, which Interest Period
shall be either a 1, 2, 3 or 6 month period.
(b) In connection with the making of each Base Rate Advance,
the Company and the Lenders shall agree on an Interest Period acceptable to both
sides.
(c) Notwithstanding paragraphs (a) or (b) above:
(i) The initial Interest Period for any Borrowing of
LIBOR Advances shall commence on the date of such Borrowing (including
the date of any conversion from a Borrowing consisting of Base Rate
Advances) and each Interest Period occurring thereafter in respect of
a continuation of such Borrowing shall commence on the day on which
the immediately preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a
day which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, PROVIDED that if any Interest Period
in respect of LIBOR Advances would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(iii) Any Interest Period in respect of LIBOR Advances
which begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall,
subject to part (iv) below, expire on the last Business Day of such
calendar month; and
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(iv) No Interest Period with respect to the Advances
shall extend beyond the Commitment Termination Date.
SECTION 2.13. EXTENSION OF COMMITMENTS. No earlier than 120
days but no later than 90 days prior to the then applicable Commitment
Termination Date, the Company may request that the Commitment Termination Date
be extended by the Lenders for an additional 364-day or longer period. The
Lenders may agree or not agree to such extension in the exercise of their sole
discretion; PROVIDED, HOWEVER, that the Agent shall inform the Company no later
than 60 days prior to the then applicable Commitment Termination Date of the
Lenders' decision as to whether to extend the Commitment Termination Date.
Notwithstanding anything herein to the contrary, the Commitment Termination Date
may only be extended, in the aggregate, for up to an additional two-year period
pursuant to this Section 2.13. If the Lenders agree, in their sole discretion,
to extend the Commitment Termination Date, then the applicable Commitment
Termination Date shall automatically be so extended upon written notice thereof
being delivered by the Lenders to the Company and completion by the Company and
its Subsidiaries of any conditions to such extension required by the Lenders.
SECTION 2.14. INCREASED COSTS.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (y) the compliance with any guideline or request
from any central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
(i) any Lender (or its applicable Lending Office) shall
be subject to any tax, duty or other charge with respect to its LIBOR
Advances or its obligation to make LIBOR Advances, or the basis of
taxation of payments to any Lender of the principal of or interest on
its LIBOR Advances or its obligation to make LIBOR Advances shall have
changed (except for changes in the tax on the overall net income of,
or any franchise tax on, such Lender or its applicable Lending Office
imposed by the jurisdiction in which such Lender's principal executive
office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender's
applicable Lending Office shall be imposed or deemed applicable or any
other condition affecting its LIBOR Advances or its obligation to make
LIBOR Advances shall be imposed on any Lender or its applicable
Lending Office or the London interbank market;
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and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining LIBOR Advances (except to
the extent already included in the determination of LIBOR for LIBOR Advances),
or there shall be a reduction in the amount received or receivable by such
Lender or its applicable Lending Office, then the Company shall from time to
time, upon written notice from and demand by such Lender on the Company (with a
copy of such notice and demand to the Agent), pay to the Agent for the account
of such Lender within five Business Days after the date of such notice and
demand, additional amounts sufficient to indemnify such Lender against such
increased cost. A certificate as to the amount of such increased cost, submitted
to the Company and the Agent by such Lender in good faith and accompanied by a
statement prepared by such Lender describing in reasonable detail the basis for
and calculation of such increased cost, shall, except for manifest error, be
final, conclusive and binding for all purposes. In the event that the Company
shall pay the increased costs accrued through the date of payment as required
under this Section 2.14(a), PLUS any funding losses as described in Section
2.16, then the Company shall have the right to convert the relevant LIBOR
Advance to a Base Rate Advance, as provided in Section 2.02, and the Agent and
each of the Lenders shall be deemed to have given their consent thereto, as
required thereunder.
(b) If any Lender shall advise the Agent that at any time,
because of the circumstances described in clauses (x) or (y) in Subsection
2.14(a) or any other circumstances beyond such Lender's reasonable control
arising after the date of this Agreement affecting such Lender or the London
interbank market or the United States secondary certificate of deposit market or
such Lender's position in such markets, LIBOR, as determined by the Agent, will
not adequately and fairly reflect the cost to such Lender of funding its LIBOR
Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone
confirmed in writing) to the Company and to the other Lenders of such
advice;
(ii)the Company's right to request and such Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest Periods as
LIBOR Advances shall be immediately suspended; and
(iii) such Lender shall make a Loan as part of the
requested Borrowing of LIBOR Advances, as the case may be, as a Base
Rate Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
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SECTION 2.15. CAPITAL ADEQUACY. If, after the date of this
Agreement, any Lender shall have determined that the adoption of any applicable
law, rule or regulation regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender with any request or
directive regarding capital adequacy not currently in effect or fully applicable
as of the Closing Date (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital as a consequence of its
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then, from time to time, promptly upon demand by
such Lender (with a copy to the Agent), the Company shall pay such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
A certificate of any Lender claiming compensation under this Section 2.14 and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive absent manifest error. In determining any such amount, such Lender
may use any reasonable averaging and attribution methods. Each Lender will
promptly notify the Company of any such adoption, change or compliance of which
it has knowledge which will entitle such Lender to compensation pursuant to this
Section, but the failure to give such notice shall not affect such Lender's
right to such compensation provided such Lender gives such notice within 90 days
after an officer of such Lender having responsibility for the administration of
this Agreement shall have received actual notice of such adoption, change or
compliance.
SECTION 2.16. FUNDING LOSSES. The Company shall compensate
each Lender, upon its written request to the Company (which request shall set
forth the basis for requesting such amounts in reasonable detail and which
request shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all of the parties hereto), for all losses, expenses
and liabilities (including, without limitation, any interest paid by such Lender
to lenders of funds borrowed by it to make or carry its LIBOR Advances, in
either case to the extent not recoverable by such Lender in connection with a
re-employment of such funds and including loss of anticipated profits, which the
Lender may sustain): (i) if for any reason (other than a default by such Lender)
a borrowing of, or conversion to or continuation of, LIBOR Advances to the
Company does not occur on the date specified therefor in a Notice of Borrowing
or Notice of Interest Rate Conversion (whether or not withdrawn), (ii) if any
repayment (including mandatory prepayments and any conversions) of any LIBOR
Advances by the Company occurs on a date which is not the last day of an
Interest Period applicable thereto, or (iii) if, for any reason, the Company
defaults in its obligation to repay its LIBOR Advances when required by the
terms of this Agreement.
SECTION 2.17. MAKING OF PAYMENTS.
(a) The Fees and all payments of principal of, or interest on,
the Notes and the Swing Line Note shall be made in immediately available funds
free and clear of any defenses, set-offs, counterclaims or withholdings or
deductions for taxes to the Agent at its principal office in Ft. Lauderdale,
Florida, for the accounts of the respective Lenders. All such payments shall be
made not later than 1:00 p.m. (Ft. Lauderdale, Florida time) and funds received
after that hour shall be deemed to have been received by the Agent on the next
following Business Day. Payments to the Agent shall, as to the Company,
constitute payment to the applicable Lenders hereunder, other than Swing Line
Loans.
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(b) Subject to Subsection 2.12(c)(ii), whenever any payment to
be made hereunder or under any Note or the Swing Line Note shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the applicable rate during such extension.
(c) On the Business Day that a payment is received or deemed
to have been received hereunder, the Agent shall remit in immediately available
funds to each Lender its share, based on the percentages set forth in Section
2.01, of all payments received by the Agent on the Notes.
SECTION 2.18. DEFAULT RATE OF INTEREST. Upon the occurrence
and during the continuance of an Event of Default set forth in Section 8.01, to
the extent permitted by law, all unpaid amounts hereunder shall, on such date
and thereafter, accrue the then applicable interest rate plus an additional two
percent (2.0%) per annum until payment in full, PROVIDED that, for any LIBOR
Advance, at the end of the applicable Interest Period, interest shall accrue at
the Base Rate plus two percent (2.0%) per annum. Interest accruing pursuant to
this Section 2.17 will be due and payable upon demand.
SECTION 2.19. PRORATION OF PAYMENTS. If any Lender shall
obtain any payment or other recovery (whether voluntary, involuntary, through
exercise of any right of set-off or otherwise) after the occurrence and during
the continuance of an Event of Default on account of the principal of or
interest on any Note or any fees in respect of this Agreement in excess of its
PRO RATA share of payments and other recoveries obtained by all the Lenders on
account of the principal of and interest on the Notes then held by them or any
fees due to them in respect of this Agreement, such Lender shall notify the
Agent thereof and forthwith purchase from the other Lenders such participation
in the Notes held by them or in such fees owed to them as shall be necessary to
cause such purchasing Lender to share the excess payment or other recovery
ratably with each of them; PROVIDED, HOWEVER, that if all or any portion of the
excess payment or other recovery is thereafter recovered from such purchasing
Lender, the purchase from such Lender shall be rescinded and the purchase price
restored by each selling Lender to the extent of such recovery, but without
interest, unless the purchasing Lender is required to pay interest on the amount
so recovered, in which case each selling Lender shall pay its pro rata share of
such interest. After the occurrence and during the continuance of an Event of
Default, disproportionate payments of interest shall be shared by the purchase
of separate participations in unpaid interest obligations, disproportionate
payments of fees shall be shared by the purchase of separate participations in
unpaid fee obligations, and disproportionate payments of principal shall be
shared by the purchase of separate participations in unpaid principal
obligations. The Company agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.18 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Company in the amount of such participation. Each Lender
shall give the Agent notice within five (5) days of any payments or other
recoveries described above which it obtains.
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SECTION 2.20. LENDERS' OBLIGATIONS SEVERAL. The obligation of
each Lender to make any Advance is several, and not joint or joint and several,
and is not conditioned upon the performance by all other Lenders of their
obligations to make Advances.
SECTION 2.21. CALCULATION OF INTEREST. Interest payable on the
Notes, including interest payable as provided in Section 2.17, shall be
calculated on the basis of a year of 360 days and paid for the actual number of
days elapsed.
SECTION 2.22. PAYMENTS FREE OF TAXES.
(a) All payments made by the Company under this Agreement, the
Notes and the Swing Line Note shall be made free and clear of, and without
deduction for, any Tax. To the extent that the Company is obligated by
Applicable Law to make any deduction or withholding on account of any Tax from
any amount payable to any Lender under this Agreement, the Notes or the Swing
Line Note, the Company shall (1) make such deduction or withholding and pay the
same to the relevant governmental authority and (2) pay such additional amount
to such Lender as is necessary to result in that Lender's receiving a net
after-tax (or after-assessment or after-charge) amount equal to the amount to
which such Lender would have been entitled under this Agreement, the Notes or
the Swing Line Note absent such deduction or withholding.
(b) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to the Company and the
Agent, on the Closing Date and otherwise prior to the time it becomes a Lender
hereunder, two copies of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 or any successor forms thereto (wherein such
Lender claims entitlement to complete exemption from or reduced rate of U.S.
Federal withholding tax on interest paid by the Company hereunder) and to
provide to the Company and the Agent a new Form 4224 or Form 1001 or any
successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of any
previously delivered form.
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SECTION 2.23. INTEREST RATE NOT ASCERTAINABLE, ETC. In the
event that the Agent, in the case of LIBOR, shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) that on any date for determining
LIBOR for any Interest Period, by reason of any changes arising after the date
of this Agreement affecting the London interbank market or the Agent's position
in such market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of LIBOR
then, and in any such event, the Agent shall forthwith give notice (by telephone
confirmed in writing) to the Company and to the Lenders of such determination
and a summary of the basis for such determination. Until the Agent notifies the
Company that the circumstances giving rise to the suspension described herein no
longer exist, the obligations of the Lenders to make or permit portions of the
Advances to remain outstanding past the last day of the then current Interest
Periods as LIBOR Advances shall be suspended, and such affected Advances shall
bear the same interest as Base Rate Advances.
SECTION 2.24. ILLEGALITY.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) at any time that the making or
continuance of any LIBOR Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful), then, in any such event, the
Lender shall give prompt notice (by telephone confirmed in writing) to the
Company and to the Agent of such determination and a summary of the basis for
such determination (which notice the Agent shall promptly transmit to the other
Lenders).
(b) Upon the giving of the notice to the Company referred to
in subsection (a) above, (i) the Company's right to request and such Lender's
obligation to make LIBOR Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of LIBOR
Advances as a Base Rate Advance, and (ii) if the affected LIBOR Advance or
Advances are then outstanding, the Company shall immediately, or if permitted by
applicable law, no later than the date permitted thereby, upon at least one
Business Day's written notice to the Agent and the affected Lender, convert each
such Advance into an Advance or Advances to a Base Rate Advance with an Interest
Period ending on the date on which the Interest Period applicable to the
affected LIBOR Advances expires, PROVIDED that if more than one Lender is
affected at any time, then all affected Lenders must be treated the same
pursuant to this Subsection 2.24(b).
SECTION 2.25. INCREASE OF COMMITMENTS. Notwithstanding
anything herein to the contrary, in the event that the Company, for any fiscal
quarter, Annualized EBITDA is greater than or equal to $15,000,000, then the
Company hereby shall automatically request from the Lenders that the Commitments
be increased to $100,000,000. Any such increase in the Commitments shall be made
in the sole discretion of the Lenders, with any additional increase in the
Commitments to be allocated pro rata among the existing Lenders. Any such
increase (i) shall remain in place until the Commitment Termination Date,
subject to any reduction provided for under the terms of this Agreement, and
(ii) notwithstanding anything herein to the contrary, shall be senior to any
other subordinated Indebtedness of the Company, including, but not limited to,
the Senior Subordinated Debt Offering. If it is not possible for the existing
Lenders to accommodate any such increase in the Commitments, then new Lenders
may be added so long as these new Lenders are reasonably acceptable to the Agent
and the Company.
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ARTICLE III
CONDITIONS TO BORROWINGS
The obligation of each Lender to make an Advance to the
Company hereunder is subject to the satisfaction of the following conditions:
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL ADVANCES.
At the time of the making by each Lender of its initial Advance hereunder,
unless otherwise waived or consented to by the Required Lenders,
(1) all obligations of the Company to the Agent or any Lender
incurred prior thereto (including, without limitation, the Company's
obligation to reimburse the fees and disbursements of counsel to the
Agent and the Lenders in accordance with this Agreement), together
with the fees described in the Commitment Letter and the Agent Fee,
shall have been paid in full;
(2) the Agent shall have received the following, each dated as of
the Closing Date, in form and substance satisfactory to the Lenders
and (except for the Notes and the Swing Line Note) in sufficient
copies for each Lender:
(a) A duly executed original of this Agreement.
(b) A duly completed and executed original of a
Note payable to the order of each Lender in the
principal amount of such Lender's Commitment.
(c) A duly completed and executed original of the
Swing Line Note payable to the order of SunTrust in
the principal amount of $2,000,000.
(d) A duly executed original of the Guaranty
Agreement and the Contribution Agreement.
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(5) A duly executed original of the Company
Security Agreement and the Guarantor Security
Agreement, together with such UCC financing statements
and UCC amendments recorded in such jurisdictions as
the Required Lenders deem necessary or desirable to
perfect the security interests granted thereunder and
under the Company Pledge Agreement, the Guarantor
Pledge Agreement, the Company Trademark Security
Agreement, and the Guarantor Trademark Security
Agreement.
(6) Certified Requests for Information or Copies
(Form UCC-11) or equivalent reports, listing all
effective financing statements which name the Company
or any of its Subsidiaries as debtor, together with
copies of such other financing statements (none of
which shall cover the Collateral purported to be
covered by the Company Security Agreement, the
Guarantor Security Agreement, the Company Pledge
Agreement, the Guarantor Pledge Agreement, the Company
Trademark Security Agreement or the Guarantor
Trademark Security Agreement), other than financing
statements in favor of the Agent.
(7) Completion of and receipt of lien searches in
all relevant jurisdictions revealing no liens or any
assets of the Company except for liens permitted by
the Loan Documents and liens to be terminated on the
Closing Date under the Company's Existing Credit
Agreement.
(8) A duly executed original of the Company
Pledge Agreement and the Guarantor Pledge Agreement,
together with stock certificates evidencing the shares
of stock of all Subsidiaries of the Company pledged to
the Agent thereunder and an undated stock power for
each such stock certificate, executed in blank by the
pledgor of such stock.
(9) A duly executed original of the Company
Trademark Security Agreement and the Guarantor
Trademark Security Agreement, together with such
filings in the United States Patent and Trademark
Office as the Required Lenders deem necessary or
desirable to perfect the security interests granted
under the Company Trademark Security Agreement and the
Guarantor Trademark Security Agreement.
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(10) Duly executed originals of any Mortgages and
Assignments of Leases to be recorded in the real
estate records of the jurisdiction in which the
Mortgaged Property related thereto is located,
together with such fixture filings and amendments to
existing fixture filings recorded in such
jurisdictions as the Required Lenders deem necessary
or desirable to perfect the security interests granted
thereunder, and endorsements to the existing title
insurance policies for such Mortgage or Assignment of
Leases showing that the Agent has a valid first
priority Lien with respect to such Mortgaged Property
subject to no encumbrances other than such Mortgage or
such Assignment of Leases, and Liens permitted
pursuant to Section 6.01 hereof.
(11) Evidence satisfactory to the Required Lenders
that all other actions necessary or desirable to
perfect and protect the security interests created by
the Security Documents have been taken.
(12) Certificates of insurance issued by the
Company's insurers, describing in reasonable detail
the insurance maintained by the Company, together with
appropriate evidence showing that the Agent has been
named as loss payee or additional insured, as its
interest may appear, on all insurance policies
insuring property of the Company and its Subsidiaries.
(13) Certificates signed by the Chief Executive
Officer or the Chief Financial Officer of each of the
Company and the Guarantors as to the solvency of such
Company or Guarantor.
(14) Repayment by the Company of all outstanding
indebtedness under the Company's Existing Credit
Agreement and termination of the commitments
thereunder.
(15) Payment of all fees required to be paid on or
prior to the Closing Date.
(16) A duly executed original of the CLOSING
CERTIFICATE, in the form attached hereto as
EXHIBIT F.
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(17) Copies of the organizational papers of each
of the Company and the Subsidiaries, certified as true
and correct by the Secretary of State of the State in
which the Company or such Subsidiary is incorporated,
and certificates from the Secretaries of State of the
States in which the Company or such Subsidiary is
incorporated and of each state in which the Company or
such Subsidiary is legally required to qualify to
transact business as a foreign corporation, certifying
the Company's or Subsidiaries' good standing as a
corporation in such States.
(18) Copies of the bylaws of each of the Company
and the Guarantors of resolutions of the Board of
Directors of each of the Company and the Guarantors
approving this Agreement, the Notes, the Swing Line
Note, the Borrowings hereunder, the Security Documents
and all other Loan Documents to which the Company or
such Guarantor is a party and of all documents
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement, the Notes, the Swing Line Note, the
Security Documents and all other Loan Documents to
which the Company or such Guarantor is a party, in
each case certified as true and correct by the
Secretary or an Assistant Secretary of the Company or
such Guarantor.
(19) A favorable written opinion of Xxxxxx
Xxxxxxxx Frome & Xxxxxxxxxx LLP, General Counsel for
the Company and the Guarantors, substantially in the
form of EXHIBIT G attached hereto, and covering such
additional matters relating to the transactions
contemplated hereby as the Required Lenders may
reasonably request, addressed to the Agent and the
Lenders.
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(20) A favorable written opinion of Holland &
Knight LLP, counsel for the Company and the
Guarantors, substantially in the form of EXHIBIT H
attached hereto, and covering such additional matters
relating to the transactions contemplated hereby as
the Required Lenders may reasonably request, addressed
to the Agent and the Lenders.
(21) Certified copies of all consents, approvals,
authorizations, registrations or filings required to
be made or obtained by the Company or the Guarantors
in connection with the transactions contemplated
hereby and by the other Loan Documents.
(3) all corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all Loan
Documents and other documents incident thereto or delivered in
connection therewith shall be satisfactory in form and substance to
each Lender.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH ADVANCE. At
the time of the making by the Lenders of each Advance hereunder (including the
initial Advances), (a) the following statements shall be true:
(i) The representations and warranties contained in
Article IV hereof are true and correct in all material respects on
and as of the date of such Borrowing as though made on and as of
such date, except insofar as such representations and warranties
speak only as of a prior date or reflect transactions and events
after the Closing Date, as permitted by the Loan Documents;
(ii) No Default or Event of Default exists or would
result from such Borrowing or from the application of the proceeds
therefrom;
(iii) Since the date of the most recent consolidated
financial statements of the Company described in Section 4.14 or
delivered to the Lenders pursuant to Section 5.02, there shall have
been no change which has had or could reasonably be expected to have
a Materially Adverse Effect;
(iv) There shall be no action or proceeding instituted
or pending before any court or other governmental authority or, to
the knowledge of the Company, threatened (i) which reasonably could
be expected to have a Materially Adverse Effect, or (ii) seeking to
prohibit or restrict the ownership or operation of any portion of
the business or assets of the Company or any of its Subsidiaries, or
to compel the Company or any of its Subsidiaries to dispose of or
hold separate all or any portion of its businesses or assets, where
such portion or portions of such business(es) or assets, as the case
may be, constitute a material portion of the total businesses or
assets of the Company or its Subsidiaries; and
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(v) The Advances to be made and the use of proceeds
thereof shall not contravene, violate or conflict with, or involve
the Agent or any Lender in a violation of, any Applicable Law.
(b) each Notice of Borrowing given by the Company in accordance with
Section 2.02(a) hereof and the acceptance by the Company of the proceeds of any
Borrowing shall constitute a representation and warranty by the Company, made as
of the time of the making of such Borrowing that the conditions specified in
Section 3.02(a) have been fulfilled as of such time unless a notice to the
contrary specifically captioned "Disclosure Statement" is received by each of
the Lenders from the Company prior to 5:00 p.m. (Ft. Lauderdale, Florida time)
on the Business Day immediately preceding the date of the making of such
Borrowing. To the extent that the Lenders agree to make such Borrowing after
receipt of a Disclosure Statement in accordance with the preceding sentence, the
representations and warranties pursuant to the preceding sentence will be deemed
made as modified by the contents of such Disclosure Statement and repeated, as
so modified, as at the time of the making of such Borrowing. Any such
modification shall be effective only for the occasion on which the Lenders elect
to make an Advance on such Borrowing, and unless expressly agreed by the
Required Lenders in writing to the contrary in accordance with Section 10.02,
shall not be deemed a waiver or modification of any condition to the making of
any future Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company and the Subsidiaries represent and warrant
as follows:
SECTION 4.01. CORPORATE STATUS OF COMPANY; STATUS OF
SUBSIDIARIES. The Company and each Subsidiary that is a corporation are duly
organized, validly existing and in good standing under the laws of the
jurisdictions of their respective incorporation and have the corporate power and
authority to own their respective property and assets and to transact the
businesses in which they respectively are engaged or presently propose to engage
and are duly qualified and in good standing as foreign corporations in all
states where failure to be so qualified and in good standing could have a
Materially Adverse Effect. Each Subsidiary that is a partnership is duly
constituted, existing and in good standing under the laws of the jurisdiction of
its constitution and has all requisite power, authority and legal right to own
its property and assets and to transact the businesses in which it is engaged or
presently proposes to engage and is duly qualified and in good standing as a
foreign partnership wherever failure to be so qualified and in good standing
could have a Materially Adverse Effect. The Company and each of its Subsidiaries
have the power to own their respective properties and to carry on their
respective businesses as now being conducted. The Company is adequately
capitalized for the purpose of conducting its business, was not formed solely
for the purpose of acting as agent for, or as an instrumentality of, any
Subsidiary.
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SECTION 4.02. CORPORATE POWER AND AUTHORITY. Each of
the Company and the Guarantors has the corporate power and has taken all
necessary corporate action (including, without limitation, any consent of
stockholders required by law or by its certificate of incorporation or bylaws)
to authorize it, to execute, deliver and carry out the terms and provisions of
and to incur its obligations under this Agreement, the Notes, the Swing Line
Note, the Security Documents and the other Loan Documents to which it is a
party. This Agreement, the Notes, the Swing Line Note, the Security Documents
and the other Loan Documents have been duly authorized, executed and delivered
by the Company and the Guarantors party thereto.
SECTION 4.03. COMPLIANCE WITH OTHER INSTRUMENTS. The
execution, delivery and performance by the Company and any Guarantors party
thereto, as the case may be, of this Agreement, the Notes, the Swing Line Note,
the Security Documents and the other Loan Documents to which it is a party, (a)
will not contravene any provision of Applicable Law, rule, regulation, judgment,
order or ruling, (b) will not conflict with, be inconsistent with, or result in
any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
upon any of the property or assets of the Company or any of its Subsidiaries
pursuant to the terms of any indenture, mortgage, deed to secure debt, deed of
trust, or any other material agreement or instrument to which the Company or any
of its Subsidiaries is a signatory or by which it is bound or to which it may be
subject, (c) will not violate any provision of the certificate of incorporation
(or equivalent thereof) or bylaws (or equivalent thereof) of the Company or any
corporate Subsidiary of the Company or the certificate of partnership or other
document governing the constitution or conduct of affairs of any Subsidiary of
the Company that is not a corporation, (d) will not require any Governmental
Approval and (e) will not result in the creation of any Lien upon the assets or
properties of the Company and its Subsidiaries except as contemplated by the
Security Documents. Neither the Company nor any of its Subsidiaries is a party
to, or otherwise subject to any provision contained in, any instrument
evidencing Indebtedness of the Company or any of its Subsidiaries, any agreement
relating thereto or any other contract or agreement (including its charter)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Indebtedness of the type to be evidenced by the Notes and the Swing Line
Note, other than the Senior Subordinated Debt Offering.
SECTION 4.04. ENFORCEABLE OBLIGATIONS. This Agreement,
the Notes, the Swing Line Note, the Security Documents and the other Loan
Documents constitute the legal, valid and binding obligation of the Company and
the Guarantors party thereto, enforceable in accordance with their terms, except
as the enforceability thereof may be limited by Bankruptcy Law and by general
principles of equity.
SECTION 4.05. GOVERNMENTAL AUTHORIZATIONS. The Company
and its Subsidiaries are in good standing with respect to all governmental
authorizations, consents, approvals, orders, licenses and other actions required
by any governmental or non-governmental authority or Person, except where the
failure to maintain such good standing will not have a Materially Adverse Effect
on the Company and its Subsidiaries.
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SECTION 4.06. INTELLECTUAL PROPERTY. Each of the
Company and its Subsidiaries owns or has the right to use all patents,
trademarks, service marks, trade names, copyrights, licenses and other rights,
free from burdensome restrictions, which are material for the operation of its
business as presently conducted. Nothing has come to the attention of the
Company, any of its Subsidiaries or any of their respective directors and
officers to the effect that (i) any product, process, method, substance, part or
other material presently contemplated to be sold by or employed by Company or
any of its Subsidiaries in connection with its business may infringe any patent,
trademark, service xxxx, trade name, copyright, license or other right owned by
any other Person, (ii) there is pending or threatened any claim or litigation
against or affecting the Company or any of its Subsidiaries contesting its right
to sell or use any such product, process, method, substance, part or other
material or (iii) there is, or there is pending or proposed, any patent,
invention, device, application or principle or any statute, law, rule,
regulation, standard or code which would prevent, inhibit or render obsolete the
production or sale of any products of, or substantially reduce the projected
revenues of, or otherwise have a Materially Adverse Effect on the Company or any
of its Subsidiaries.
SECTION 4.07. OUTSTANDING INDEBTEDNESS. Neither the
Company nor any of its Subsidiaries, on a consolidated basis, has outstanding
any Indebtedness, except as described on SCHEDULE 4.07 hereto. There exists no
default under the provisions of any instrument evidencing or securing any
Indebtedness of the Company or any of its Subsidiaries or of any agreement
otherwise relating thereto which has had or would reasonably be expected to have
a Materially Adverse Effect.
SECTION 4.08. INSURANCE COVERAGE. Each property of the
Company or any of its Subsidiaries is insured within terms reasonably acceptable
to the Lenders for the benefit of the Company or a Subsidiary of the Company in
amounts deemed adequate by the Company's management in its reasonable business
judgment and not materially less than those amounts customary in the industry in
which the Company and its Subsidiaries operate against risks usually insured
against by Persons operating businesses similar to those of the Company or its
Subsidiaries in the localities where such properties are located, and the Agent
has been named loss payee or additional insured, as its interest may appear, on
all such policies. Attached as SCHEDULE 4.08 hereto are certificates evidencing
such insurance.
SECTION 4.09. TITLE TO PROPERTIES. Each of the Company
and its Subsidiaries has (i) good and marketable fee simple title to its
respective real properties (other than real properties it leases from others),
including such real properties reflected in the financial statements referred to
in Section 4.14, subject to no Lien of any kind except Liens permitted by
Section 6.01, and (ii) good title to all of its other respective properties and
assets (other than properties and assets which it leases from others), including
the other properties and assets reflected in the financial statements referred
to in Section 4.14, subject to no Lien of any kind except Liens permitted by
Section 6.01. Each of the Company and its Subsidiaries enjoys peaceful and
undisturbed possession in all material leases necessary for the operation of its
respective properties and assets, none of which contains any unusual or
burdensome provisions that would adversely affect or impair the operation of
such properties and assets, and all such leases are valid and subsisting and in
full force and effect.
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SECTION 4.10. NO BURDENSOME RESTRICTIONS. Neither the
Company nor any of its Subsidiaries is a party to any contract or agreement that
would result in any burdensome restrictions that might reasonably be expected to
have a Materially Adverse Effect on the Company or any of its Subsidiaries,
including, but not limited to, any collective bargaining agreements.
SECTION 4.11. NO MATERIAL VIOLATION OF LAW. Neither the
Company nor any of its Subsidiaries has any notice of any violation of any law,
statute, order, regulation or judgment entered against it by any court that may
reasonably be expected to have a Materially Adverse Effect on the Company.
SECTION 4.12. NO DEFAULT UNDER OTHER AGREEMENTS.
Neither the Company nor any of its Subsidiaries is in default under any material
agreement to which it is a party.
SECTION 4.13. NO EQUITY INVESTMENTS. Neither the
Company nor any of its Subsidiaries possesses investments in any equity or other
long-term investments in any person, except permitted investments, including any
wholly-owned Subsidiaries of the Company and the Subsidiaries.
SECTION 4.14. FINANCIAL STATEMENTS. The audited
consolidated financial statements of the Company dated June 30, 1997, and the
related consolidated statements of income (including supporting footnote
disclosures), with opinion of Xxxxxx, Xxxxxx & Xxxxxxxxxx LLP, the unaudited
consolidated quarterly financial statements of the Company dated August 31,
1997, and the related consolidated statements of income (including supporting
footnote disclosures), and the unaudited consolidated monthly financial
statements of the Company dated August 31, 1997, all heretofore furnished to the
Lenders, are all true and correct in all material respects and present fairly
the consolidated financial condition at the date of said financial statements
and the results of operations for the fiscal period then ending of the Company.
The Company as of such date did not have any significant liabilities, contingent
or otherwise, including liabilities for Taxes or any unusual forward or
long-term commitments which were not disclosed by or reserved against in the
financial statements referred to above or in the notes thereto, and at the
present time there are no material unrealized or anticipated losses from any
unfavorable commitments of the Company or any of its Subsidiaries. All such
financial statements have been prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved. Since August 31, 1997, there
has been no material adverse change in the operations, business, property or
assets of, or in the condition (financial or otherwise) of, the Company.
SECTION 4.15. LITIGATION. Except as disclosed on
SCHEDULE 4.15 attached hereto, there are no actions, suits, investigations or
proceedings pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened against or affecting the Company or any of its
Subsidiaries or any of their properties or rights by or before any court,
arbitrator or administrative or governmental body that would have a Materially
Adverse Effect on the Company or any of its Subsidiaries.
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SECTION 4.16. TAXES. Each of the Company and its
Subsidiaries has filed or caused to be filed all declarations, reports and tax
returns including, in the case of the Company and each Subsidiary located in the
United States, all federal and state income tax returns which it is required by
law to file, and has paid all Taxes which are shown as being due and payable on
such returns or on any assessments made against it or any of its properties. The
accruals and reserves on the books of the Company and its Subsidiaries in
respect of Taxes are adequate in all material respects for all periods. Neither
the Company nor any of its Subsidiaries has any knowledge of any unpaid
adjustment, assessment or any penalties or interest of significance, or any
basis therefor, by any taxing authority for any period, except those being
contested in good faith and by appropriate proceedings which effectively stay
the enforcement of any Lien and the attachment of a penalty.
SECTION 4.17. MARGIN REGULATIONS. No part of the
proceeds of any of the Advances will be used for any purpose which violates, or
which would be inconsistent or not in compliance with, the provisions of the
applicable Margin Regulations.
SECTION 4.18. ERISA. Except as disclosed on SCHEDULE
4.18 attached hereto:
(a) IDENTIFICATION OF PLANS. (i) Neither the Company nor
any ERISA Affiliate maintains or contributes to, or has maintained
or contributed to, any Plan that is an ERISA Plan, and (ii) neither
the Company nor any of its Subsidiaries maintains or contributes to,
or has maintained or contributed to, any Plan that is an Executive
Arrangement;
(b) COMPLIANCE. Each Plan has at all times been
maintained, by its terms and in operation, in accordance with all
Applicable Laws, except such noncompliance (when taken as a whole)
that will not have a Materially Adverse Effect;
(c) LIABILITIES. Neither the Company nor any of its
Subsidiaries is currently nor has in the last 6 years been obligated
to make contributions (directly or indirectly) to a Multiemployer
Plan, nor is it currently nor will it become subject to any
liability (including withdrawal liability), tax or penalty
whatsoever to any Person whomsoever with respect to any Plan
including, but not limited to, any tax, penalty or liability arising
under Title I or Title IV or ERISA or Chapter 43 of the Code, except
such liabilities (when taken as a whole) as will not have a
Materially Adverse Effect; and
(d) FUNDING. The Company and each ERISA Affiliate has
made full and timely payment of all amounts (i) required to be
contributed under the terms of each Plan and Applicable Law and (ii)
required to be paid as expenses of each Plan. No Plan has an "amount
of unfunded benefit liabilities" (as defined in Section 4001(a)(18)
of ERISA).
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SECTION 4.19. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) The Company and its Subsidiaries are not in
violation of, and do not presently have outstanding any liability under, have
not been notified that they are or may be liable under and do not have knowledge
of any liability or potential liability (including any liability relating to
matters set forth in Part A. of SCHEDULE 4.19) except as set forth in Part A. of
SCHEDULE 4.19, under any applicable Environmental Laws which violation,
liability or potential liability could reasonably be expected to have a
Materially Adverse Effect.
(b) Except as set forth in Part B. of SCHEDULE 4.19,
neither the Company nor any of its Subsidiaries has received a written request
for information under any Environmental Laws stating or suggesting that the
Company or any of its Subsidiaries has or may have liability thereunder or
written notice that any such entity has been identified as a potentially
responsible party under any Environmental Laws, or any comparable state law, or
any public health or safety or welfare law, nor has any such entity received any
written notification that any Hazardous Substance that it or any of its
respective predecessors in interest has generated, stored, treated, handled,
transported, or disposed of, has been released or is threatened to be released
at any site at which any Person intends to conduct or is conducting a remedial
investigation or other action pursuant to any Environmental Laws.
(c) Except as set forth in Part C. of SCHEDULE 4.19,
each of the Company and its Subsidiaries has obtained all material permits,
licenses or other authorizations required for the conduct of their respective
operations under all applicable Environmental and Asbestos Laws and each such
authorization is in full force and effect.
(d) Except as set forth in Part D. of SCHEDULE 4.19,
each of Company and its Subsidiaries complies in all material respects with all
laws and regulations relating to equal employment opportunity and employee
safety in all jurisdictions in which it is presently doing business, and Company
will use its reasonable best efforts to comply, and to cause each of its
Subsidiaries to comply, with all such laws and regulations which may be legally
imposed in the future in jurisdictions in which Company or any of its
Subsidiaries may then be doing business.
SECTION 4.20. POSSESSION OF MATERIAL PATENTS,
TRADEMARKS, ETC. Each of the Company and its Subsidiaries possesses all patents,
trademarks, licenses, and other intellectual property rights that are necessary
in any material respect for the ownership, maintenance and operation of its
properties and assets and they are possessed free from any burdensome
restrictions. To the Company's knowledge, there are no infringements of such
patents, trademarks, licenses, and other intellectual property rights that could
have a Materially Adverse Effect on the Company or any of its Subsidiaries.
SECTION 4.21. SUBSIDIARIES. SCHEDULE 4.21 attached
hereto correctly sets forth the name of each Subsidiary of the Company, the
jurisdiction of such Subsidiary's incorporation or organization and the
ownership of all issued and outstanding capital stock of such Subsidiary. All
the outstanding shares of the capital stock of each such Subsidiary have been
validly issued and are fully paid and nonassessable and all such outstanding
shares, except as noted on such SCHEDULE 4.21, are owned of record and
beneficially by the Company or a wholly-owned Subsidiary of the Company free of
any Lien or claim.
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SECTION 4.22. DISCLOSURE. Neither this Agreement, any
Loan Document nor any other document, certificate or statement furnished to the
Lenders or the Agent by or on behalf of the Company or any Guarantor in
connection herewith contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
and therein not misleading, if, in either case, such fact is material to an
understanding of the financial condition, business, prospects or property of the
Company, or the ability of the Company to fulfill its obligations under any Loan
Documents to which it is a party.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Note or the Swing Line Note shall remain
unpaid or any Lender shall have any Commitment hereunder, unless the
Required Lenders shall otherwise consent in writing:
SECTION 5.01. USE OF PROCEEDS. The proceeds of all
Borrowings will be used by the Company as provided in Section 2.09. None of the
proceeds of any Borrowing shall be used, directly or indirectly, to purchase or
carry, or to reduce or retire or refinance any credit incurred to purchase or
carry, any "margin security" or "margin stock" (within the meaning of the
regulations of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any such
"margin security" or "margin stock" or for any other purpose that might deem
this transaction as a "purpose credit" (within the meaning of the regulations of
the Board of Governors of the Federal Reserve System). If requested by any
Lender, the Company will furnish to such Lender statements in conformity with
the requirements of Federal Reserve Form U-1 referred to in Regulation U.
SECTION 5.02. REPORTING COVENANTS.
(a) The Company will furnish to each of the Lenders:
(i) as soon as available and in any event no later than
90 days after the end of each fiscal year of the Company, an audited
consolidated balance sheet of the Company and its Subsidiaries as of
the close of such fiscal year, and the related audited consolidated
statements of income and cash flow of the Company and its
Subsidiaries for such fiscal year, all in reasonable detail and with
(1) an unqualified opinion of Xxxxxx, Xxxxxx & Xxxxxxxxxx LLP, or
such other independent certified public accountant of recognized
standing selected by the Company and satisfactory to the Required
Lenders, and (2) a certificate (with supporting details) from the
Chief Financial Officer of the Company stating whether a Default or
Event of Default exists;
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(ii) as soon as available and in any event within 45
days after the end of each fiscal quarter of the Company, its
quarterly unaudited financial statements, together with a
certificate in the form of EXHIBIT I hereto (the "COMPLIANCE
CERTIFICATE") by the Chief Financial Officer of the Company (with
supporting details) stating that the financials were prepared in
accordance with GAAP (subject to customary year-end audit
adjustments) and that the covenants described in Article VII have
been met;
(iii) as soon as available and in any event within 45
days after the end of each month, the monthly unaudited financial
statements of the Company; and
(iv) at least 15 days prior to the closing of any
acquisition permitted under Section 6.07(b), the adjusted pro forma
balance sheet and income statements of the Company, reflecting the
financial conditional of the Company and its Subsidiaries after such
acquisition, all in accordance with GAAP.
In each case, such financial statements shall include balance
sheets, income statements, and statements of cash flows for the Company,
provided, HOWEVER, that the monthly financial statements provided by the Company
to the Lenders shall not include a statement of cash flows.
(b) The Company will furnish to each of the Lenders, with reasonable
promptness, notice of certain other events, including the occurrence or
existence of any Default or Event of Default, any citation for a material
violation of environmental laws or regulations, important matters relating to
funding of employee benefit plans, or such other information as any Lender or
the Agent may reasonably request.
SECTION 5.03. MAINTENANCE OF PROPERTIES. The Company
shall, and shall cause each of its Subsidiaries to, maintain, preserve, protect
and keep, or cause to be maintained, preserved, protected and kept, its
properties and every part thereof in good repair, working order and condition,
and from time to time will make or cause to be made all needful and proper
repairs, renewals, replacements, extensions, additions, betterments, and
improvements thereto, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times other than those which
the failure to maintain would in the aggregate, have no Materially Adverse
Effect; PROVIDED, HOWEVER, that the Company and each Subsidiary shall not be
under any obligation to repair or replace any such properties which have become
obsolete or have become unsuitable or inadequate for the purpose for which they
are used.
SECTION 5.04. MAINTENANCE OF INSURANCE. The Company
shall, and shall cause each of its Subsidiaries to, (i) maintain liability and
worker's compensation insurance with financially sound and reputable insurers
(or maintain a legally sufficient, fully funded, program of self insurance
against worker's compensation liabilities), and also maintain adequate insurance
on its properties against such hazards and in at least such amounts as is
customary in the business, and (ii) name the Agent as loss payee or additional
insured, as its interest may appear, on each of such insurance policies. At the
request of any Lender, the Company will forthwith deliver an officer's
certificate specifying the material details of such insurance in effect.
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SECTION 5.05. MAINTENANCE OF BOOKS; INSPECTION OF
PROPERTY AND RECORDS. The Company shall, and shall cause each of its
Subsidiaries to, keep proper books of record and account containing complete and
accurate entries in all material respects of all of their respective financial
and business transactions and prepare or cause to be prepared its annual
statements and reports in accordance with GAAP. The Company shall, and shall
cause each of its Subsidiaries to, permit any person designated by any Lender to
visit and inspect any of its properties, corporate books and financial records,
to make copies and take extracts therefrom, and to discuss its accounts,
affairs, and finances with the principal officers of the Company and such
Subsidiary during reasonable business hours, all at such times as the Lenders
may reasonably request; PROVIDED, HOWEVER, that any time following the
occurrence and continuance of an Event of Default, no prior notice to the
Company and such Subsidiary shall be required. The Company shall, and shall
cause each of its Subsidiaries to, prepare or cause to be prepared its interim
statements and reports in accordance with GAAP, subject to usual and customary
year end audit and adjustments and footnote disclosures.
SECTION 5.06. EXISTENCE AND STATUS. The Company shall,
and shall cause each of its Subsidiaries that is a corporation to, maintain its
corporate existence, its material rights, franchises and licenses (for the
scheduled duration thereof), its patents, trademarks, tradenames, service marks
and other intellectual property rights necessary or desirable in the normal
conduct of its business, its good standing in its state of incorporation and its
qualification and good standing as a foreign corporation in all jurisdictions
where its ownership of property or its business activities cause such
qualification to be required and the failure to do so could have a Materially
Adverse Effect. The Company shall cause each Subsidiary that is not a
corporation to maintain its present form of existence, its material rights,
franchises and licenses (for the scheduled duration thereof), its patents,
trademarks, tradenames, service marks and other intellectual property rights
necessary or desirable in the normal conduct of its business, its good standing
in the jurisdiction of its constitution and its qualification and good standing
as a foreign entity in all jurisdictions where its ownership of property or its
business activities cause such qualification to be required and the failure to
do so could have a Materially Adverse Effect.
SECTION 5.07. TAXES AND CLAIMS. The Company shall, and
shall cause each of its Subsidiaries to, pay and discharge (i) all Taxes prior
to the date on which penalties attach thereto, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or services)
(collectively "OTHER CLAIMS") which, if unpaid, might become a Lien upon any of
its property; PROVIDED, HOWEVER, that the Company and its Subsidiaries shall not
be required to pay and discharge any such Tax or Other Claim so long as the
legality or amount thereof shall be promptly contested in good faith and by
appropriate proceedings which effectively stay the enforcement of any Lien and
the attachment of a penalty and the Company or such Subsidiary, as the case may
be, shall have set aside appropriate reserves therefor in accordance with GAAP.
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SECTION 5.08. COMPLIANCE WITH LAWS, ETC. The Company
shall, and shall cause each of its Subsidiaries to, comply with all Applicable
Law (including, without limitation, the Environmental Laws and Employee Benefit
Laws) and Contractual Obligations applicable to or binding on any of them where
the failure to comply with such Applicable Law and Contractual Obligations would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.09. ERISA. The Company shall, and shall cause
each of its Subsidiaries to, deliver to each of the Lenders:
(i) Promptly after the discovery of the occurrence
thereof with respect to any Plan, or any trust established
thereunder, notice of (A) a "reportable event" described in Section
4043 of ERISA and the regulations issued from time to time
thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations), or
(B) any other event which could subject the Company or any ERISA
Affiliate to any material tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Code;
(ii) At the same time and in the same manner as such
notice must be provided to the PBGC, or to a Plan participant,
beneficiary or alternative payee, any notice required under Section
101(d), 302(f)(4), 303(e), 307(e), 4041(b)(1)(A) or 4041(c)(1)(A) of
ERISA or Section 412(f) of the Code with respect to any Plan; and
(iii) Upon the request of any Lender, (A) true and
complete copies of any and all documents, government reports and
determination or opinion letters (if any) for any Plan, or (B) a
current statement of withdrawal liability for each Multiemployer
Plan.
SECTION 5.10. LITIGATION. The Company shall give prompt
written notice to each of the Lenders of (a) any judgment entered by a court,
tribunal, administrative agency or arbitration panel in which the amount of
liability is $250,000 or more in excess of insurance coverage, or in which the
aggregate amount of liability is $500,000 or more in excess of insurance
coverage, and (b) any disputes which may exist between the Company or any of its
Subsidiaries and any governmental or regulatory body, in which the amount in
controversy is $250,000 or more and which may materially and adversely affect
the normal business operations of the Company or any of its Subsidiaries or any
of their respective properties and assets. The Company shall provide each of the
Lenders, on a quarterly basis, concurrently with the delivery of the Compliance
Certificate as provided under Section 5.02(a)(ii), a report which shall set
forth each action, proceeding or claim, of which the Company or any of its
Subsidiaries has notice, which is commenced or asserted against the Company, and
in which the amount claimed or the potential liability is $250,000 or more.
SECTION 5.11. NOTICE OF EVENTS OF DEFAULT. The Company
shall deliver to each of the Lenders within five (5) days after any Executive
Officer obtains any knowledge of any condition, event or act which creates or
causes a Default or an Event of Default, a certificate signed by an officer of
the Company specifying the nature thereof, the period of existence thereof and
what action the Company or such Subsidiary proposes to take with respect
thereto.
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SECTION 5.12. STOCKHOLDER REPORTS, ETC.
Contemporaneously with the sending or filing thereof, the Company will provide
to each of the Lenders copies of all proxy statements, financial statements, and
reports which the Company sends to its stockholders, and copies of all regular,
periodic, and special reports, and all statements which the Company files with
the Securities and Exchange Commission or any governmental authority which may
be substituted therefor, or with any national securities exchange.
SECTION 5.13. FUTURE GUARANTORS.
(a) Subject to any prohibitions or limitations as to
power or authority imposed by law applicable to any such Subsidiary, the Company
shall cause (1) each Person incorporated or otherwise organized in the United
States that hereafter becomes a Subsidiary (an "ADDITIONAL GUARANTOR") to become
a Guarantor under the Guaranty Agreement and to create a security interest in
favor of the Lenders in all of its assets, including, to the extent owned by
such Guarantor, 100% of the stock of other Subsidiaries, to the Agent upon the
creation of such Additional Guarantor by executing and delivering to the Agent
the Supplemental Documents; and (2) each Person that owns the stock of the
Additional Guarantor to pledge and deliver such stock to the Agent, together
with a supplement to the Company Pledge Agreement or Guarantor Pledge Agreement,
as the case may be, and with stock powers or other appropriate instruments of
transfer executed by such Person in blank.
(b) The Additional Guarantor shall also deliver to the Agent and the
Lenders, simultaneously with the Supplemental Documents, (1) Certified Requests
for Information or Copies (Form UCC-11) or equivalent reports, showing that
there are no effective financing statements which name the Additional Guarantor
as debtor and (2) an opinion rendered by legal counsel to such Additional
Guarantor and the Person required to pledge the shares of stock of the
Additional Guarantor under the Security Documents to the Agent, addressing the
types of matters set forth in EXHIBIT G and EXHIBIT H hereof and such other
matters as the Lenders may reasonably request, addressed to the Agent and the
Lenders.
SECTION 5.14. OWNERSHIP OF GUARANTORS. The Company and
its Subsidiaries that own Guarantors shall maintain their percentage ownership
of such Guarantors existing as of the date hereof and shall not decrease its
ownership percentage in each Additional Guarantor pursuant to Section 5.13 after
the date hereof, as such ownership exists at the time such Additional Guarantor
becomes a Guarantor hereunder.
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ARTICLE VI
NEGATIVE COVENANTS
So long as any Note or the Swing Line Note shall remain
unpaid or any Lender shall have any Commitment hereunder, without the written
consent of the Required Lenders (unless otherwise provided herein):
SECTION 6.01. LIMITATION ON LIENS AND SECURITY
INTERESTS. The Company shall not, and shall not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist, any Lien or other encumbrance of
any kind on any of its properties or assets, real or personal, wherever located,
including assets hereafter acquired, except
(a) Liens existing on the date hereof and described on
SCHEDULE 6.01;
(b) Liens in favor of the Agent;
(c) Liens for Taxes not yet payable or being contested
in good faith and by appropriate proceedings;
(d) deposits or pledges to secure payments of workmen's
compensation, unemployment insurance, old age pension and other
social security obligations;
(e) mechanics', carriers', workmen's, repairmen's,
landlord's, or other Liens arising in the ordinary course of
business securing obligations which are not overdue for a period
longer than 60 days, or which are being contested in good faith by
appropriate proceedings;
(f) pledges or deposits to secure performance in
connection with bids, tenders, contracts (other than contracts for
the payment of money) or leases made in the ordinary course of the
business of the Company or any of its Subsidiaries;
(g) deposits to secure, or in lieu of, surety and appeal
bonds to which the Company or a Subsidiary of the Company is a
party;
(h) deposits in connection with the prosecution or
defense of any claim in any court or before any administrative
commission or agency;
(i) Liens arising out of judgments or awards with
respect to which the Company or a Subsidiary of the Company at the
time shall in good faith be diligently prosecuting an appeal or
proceedings for review and with respect to which it shall have
secured a stay of execution pending such appeal or proceedings for
review;
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(j) purchase money security interests, and leases in the
nature thereof, for equipment and machinery or mortgages for real
estate, in each case purchased in the ordinary course of business
and to be used in the conduct of its business, PROVIDED that any
such security interest or mortgage secures only the repayment of the
purchase price of such machinery, equipment or real estate and any
such lease obligations do not exceed the purchase price of such
machinery, equipment or real estate;
(k) Liens on fixtures in connection with existing
mortgages on real property or mortgages permitted hereunder;
(l) zoning restrictions, easements, licenses,
reservations and restrictions on the use of real property or minor
irregularities thereto that do not materially detract from the use
thereof or the assets of the Company;
(m) Liens incurred on pledges or deposits in the
ordinary course of business in connection with workers'
compensation, unemployment insurance, old age or Social Security
benefits; and
(n) the assets in which a security interest is granted
to Harsco pursuant to the Harsco Arrangement, PROVIDED that the
aggregate amount of such pledged assets is less than $20 million.
SECTION 6.02. COMPLIANCE WITH ERISA. The Company shall
not take or fail to take, or permit any of its Subsidiaries or ERISA Affiliates
to take or fail to take, any action with respect to a Plan including, but not
limited to, (i) establishing any Plan, (ii) amending any Plan, (iii) terminating
or withdrawing from any Plan, or (iv) incurring an "amount of unfunded benefit
liabilities", as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA, where such action or failure could have a
Materially Adverse Effect, result in a Lien on the property of the Company or
any of its Subsidiaries or require the Company or any of its Subsidiaries to
provide any security, except to the extent permitted pursuant to Section 6.01
hereof.
SECTION 6.03. SALE AND LEASEBACK. The Company shall
not, and shall not permit any of its Subsidiaries to, enter into any transaction
with any other entity whereby such other entity leases assets sold or otherwise
transferred to it by the Company or such Subsidiary.
SECTION 6.04. TRANSACTIONS WITH AFFILIATES. The Company
shall not, and shall not permit any of its Subsidiaries to:
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(a) Enter into any material transaction or series of
related transactions which in the aggregate would be material,
whether or not in the ordinary course of business, with any
affiliate of the Company or any of its Subsidiaries (but excluding
any affiliate which is the Company or any of its Subsidiaries),
other than on terms and conditions substantially as favorable to the
Company or such Subsidiary as would be obtained by the Company or
such Subsidiary at the time in a comparable arm's-length transaction
with a Person other than an affiliate.
(b) Convey or transfer to any other Person (including
the Company or any of its Subsidiaries) any real property,
buildings, or fixtures used in the manufacturing or production
operations of the Company or any of its Subsidiaries, or convey or
transfer to the Company or any of its Subsidiaries any other assets
(excluding conveyances or transfers in the ordinary course of
business) if at the time of such conveyance or transfer any Default
or Event of Default exists or would exist as a result of such
conveyance or transfer.
SECTION 6.05. GUARANTIES. The Company shall not, and
shall not permit any of its Subsidiaries to, create, incur, assume, guarantee,
suffer to exist or otherwise become liable on or with respect to, directly or
indirectly, any guaranties other than:
(i) endorsements of instruments for deposit
or collection in the ordinary course of business;
(ii) guarantees of Indebtedness owed by any
Consolidated Company to another Consolidated Company; or
(iii) guarantees made pursuant to the Harsco
Arrangement.
SECTION 6.06. LIMITATIONS ON PAYMENT RESTRICTIONS.
Except as provided under (i) the Senior Subordinated Debt Offering, and (ii) the
Harsco Arrangement, the Company shall not, and shall not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of the
Company or any of its Subsidiaries to (i) pay dividends or make any other
distributions on stock of the Company or any of its Subsidiaries, (ii) pay any
indebtedness owed to the Company or any of its Subsidiaries, or (iii) transfer
any of its property or assets to the Company or any of its Subsidiaries except
any consensual encumbrance or restriction existing under the Loan Documents.
SECTION 6.07. MERGER; JOINT VENTURES; SALE OF ASSETS;
ACQUISITIONS. The Company shall not, and shall not permit any of its
Subsidiaries to:
(a) merge or consolidate with any other entity, except
the foregoing restrictions shall not be applicable to:
(i) mergers or consolidations of (x) any
Subsidiary with any other Subsidiary which is a
Guarantor or (y) any Subsidiary with the Company; or
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(ii) mergers or consolidations in which any
Person engaged in business in which the Company is
engaged as of the Closing Date or substantially related
thereto merges or consolidates with the Company or any
of its Subsidiaries where the surviving corporation is
the Company or such Subsidiary;
(b) purchase, lease or otherwise acquire for cash, stock
or other consideration, the stock of any Person or all or any
substantial portion of the assets of any Person where such stock,
assets or other consideration have an aggregate fair market value of
more than $7,500,000, PROVIDED, HOWEVER, that so long as no Event of
Default has occurred (or will be caused by such acquisition), the
Company or any of its Subsidiaries may request that the Lenders
consent to such acquisition for consideration greater than
$7,500,000 in any one transaction. Consistent with such request, the
Company shall provide the Lenders with an information package to
include (but not limited to) providing the following:
(i) historical financial statements showing
the impact of the acquisition on the Company's
historical operating performance and existing balance
sheet;
(ii) projections detailing the expected
performance of the combined company going forward; and
(iii) a detailed listing of the assets
proposed to be purchased in the transaction;
(c) enter into a partnership or joint venture with any
other entity; PROVIDED, HOWEVER, that so long as no Event of Default
has occurred, the Company or any of its Subsidiaries may request
that the Required Lenders consent to its entering into a partnership
or joint venture for the purposes of carrying on its business; or
(d) sell, lease, transfer or otherwise dispose of any
assets, except that this Section 6.07 shall not prohibit any
disposition of (i) any asset if on the date such asset is sold, the
Asset Value of all asset sales occurring after the Closing Date,
taking into account the Asset Value of the proposed asset sale,
would not exceed on an aggregate basis five percent (5%) of the
Consolidated Net Worth of the Company and its Subsidiaries on the
Closing Date and such sale is in the ordinary course of business,
(ii) any obsolete or retired property not used or useful in its
business (such assets to include high-pressure tanks, motorized
vehicles, including cars and trucks, and lines of business other
than carbon dioxide that may be obtained by the Company as part of
the group of assets of any corporation or other business entity the
Company may acquire) or (iii) certain other sales to be agreed upon
in writing by the Company and the Required Lenders.
SECTION 6.08. DIVIDENDS; LOANS, ADVANCES.
(a) In any fiscal year of the Company, the Company shall
not pay or declare any dividends on any of its capital stock.
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(b) The Company shall not, and shall not permit any of
its Subsidiaries to, make, permit or hold any loans or advances (not including
accounts receivable) to any Person, other than:
(i) Investments in Subsidiaries existing on
the Closing Date;
(ii) direct obligations of the United States
or any agency thereof, or obligations guaranteed by the
United States or any agency thereof, in each case
supported by the full faith and credit of the United
States and maturing within one year from the date of
creation thereof;
(iii) commercial paper maturing within one
year from the date of creation thereof rated in the
highest grade by a nationally recognized credit rating
agency;
(iv) time deposits maturing within one year
from the date of creation thereof with, including
certificates of deposit issued by any Lender and any
office located in the United States of any bank or trust
company which is organized under the laws of the United
States or any state thereof and has total assets
aggregating at least $500,000,000, including without
limitation, any such deposits in Eurodollars issued by a
foreign branch of any such bank or trust company;
(iv) Investments made by Plans;
(v) advances made by the Company or any of
its Subsidiaries to its employees during the ordinary
course of business, and loans made by the Company to its
employees to allow such employees to purchase stock of
the Company (such loans to be evidenced by a promissory
note and pledged to the Agent pursuant to the terms of
the Security Documents); PROVIDED that the aggregate
total of such advances made by the Company to its
employees under this Subsection shall not exceed
$1,000,000 at any time; and
(vi) deposits made by the Company in
connection with acquisitions of other business
entities.
SECTION 6.09. NATURE OF BUSINESS. The Company shall
not, and shall not permit any of its Subsidiaries to, engage in any business or
businesses other than those engaged in by the Company or such Subsidiary on the
date hereof; PROVIDED, HOWEVER, that nothing herein contained shall prevent the
Company or any of its Subsidiaries (i) from expanding the location of its
business or businesses in the United States, (ii) from ceasing or omitting to
exercise any rights, licenses, permits, or franchises which in good faith in the
judgment of the Company or such Subsidiary can no longer be profitably
exercised, or (iii) from engaging in a business or businesses that are ancillary
to those engaged in by the Company or such Subsidiary on the date hereof.
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SECTION 6.10. SALE OF SUBSIDIARIES. The Company shall
not, and shall not permit any of its Subsidiaries to, sell or otherwise dispose
of any shares of capital stock of or other ownership interest in any Subsidiary
of the Company (except in connection with any acquisition, merger or
consolidation permitted by Section 6.07), or permit any Subsidiary of the
Company to issue any additional shares of its capital stock or other incidents
of ownership, except on a PRO RATA basis to all its stockholders, partners or
owners, as the case may be and provided that any such additional shares of
capital stock or other incidents of ownership issued to the Company, any
Guarantor or Additional Guarantor are pledged to the Agent.
SECTION 6.11. NEGATIVE PLEDGES. The Company shall not,
and shall not permit any of its Subsidiaries to, agree or covenant with any
Person to restrict in any way its ability to grant any Lien on its assets in
favor of the Lenders, except that this Section 6.11 shall not apply to (i) any
covenants contained in this Agreement or the Security Documents, and (ii)
covenants and agreements made in connection with Liens described in Section
6.01(j) but only if such covenant or agreement applies solely to the specific
machinery, equipment or real estate to which such Lien relates.
SECTION 6.12. CREATION OF SUBSIDIARIES. Neither the
Company nor any of its Subsidiaries shall create or acquire any other Subsidiary
or any other affiliate after the Closing Date.
SECTION 6.13. PREPAYMENTS UNDER OTHER AGREEMENTS. The
Company shall not, and shall not permit any of its Subsidiaries to, make any
prepayments under any Subordinated Debt document or repurchase any notes issued
in connection with any Subordinated Debt without the written consent of the
Lenders.
ARTICLE VII
FINANCIAL COVENANTS
So long as any Note or the Swing Line Note shall remain
unpaid or any Lender shall have any Commitment hereunder, without the
consent of the Required Lenders:
SECTION 7.01. SENIOR DEBT COVERAGE RATIO. The Company
shall not permit the Senior Debt Coverage Ratio as of the last day of each
fiscal quarter to be greater than 3.5 to 1.0.
SECTION 7.02. FIXED CHARGE COVERAGE RATIO. The Company
shall not permit the Fixed Charge Coverage Ratio as of the last day of any
fiscal quarter of the Company to be less than 1.25 to 1.0.
SECTION 7.03. SENIOR DEBT LEVERAGE RATIO. The Company
shall not permit the Senior Debt Leverage Ratio as of the last day of any fiscal
quarter to be greater than 0.60 to 1.0.
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SECTION 7.04. MINIMUM NET WORTH. The Company shall at
all times maintain its Net Worth greater than the Minimum Net Worth, equal to
(a) $50,000,000, increasing to $55,000,000 beginning on the fiscal quarter
ending on December 31, 1999, (b) PLUS fifty percent (50%) of the cumulative
Consolidated Net Income for each fiscal quarter beginning after the fiscal
quarter ending on September 30, 1997 (specifically not including any
Consolidated Net Loss for any fiscal quarter), PLUS (c) the cumulative net
proceeds of all equity offerings made by the Company for each fiscal quarter
beginning after the fiscal quarter ending on September 30, 1997, if any.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT. Any one or more of the
following shall constitute an Event of Default hereunder:
(a) The Company shall fail to pay any principal amount
owing when due pursuant to this Agreement, the Notes or the Swing
Line Note; or
(b) The Company shall fail to pay any interest, fees, or
any other amounts owing pursuant to this Agreement, the Notes or the
Swing Line Note within three (3) Business Days of the due date
thereof; or
(c) The Company shall fail to perform or observe any
covenant or agreement contained in Section 5.02 or Section 6.02, if
remaining unremedied for a period of ten (10) days after (x) an
Executive Officer becomes aware of such failure or (y) the Agent or
any Lender gives notice to the Company as provided under Section
10.03; or
(d) The Company shall fail to perform or observe any
covenant or agreement contained in Section 5.11, Article VI (other
than Section 6.02) and Article VII; or
(e) The Company shall fail to perform or observe any
other covenant or agreement set forth in this Agreement, other than
those referred to in clauses (a), (b), (c) and (d) above, and (to
the extent such failure can be remedied) such failure of performance
shall not be remedied within thirty (30) days after the earlier of
the date on which (1) the Company obtains knowledge thereof and (2)
written notice thereof has been given by the Agent to the Company;
or
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(f) Any representation, warranty or statement made by or
on behalf of the Company or any Guarantor to the Agent or any Lender
in this Agreement, the Company Security Agreement, the Company
Pledge Agreement, the Company Trademark Security Agreement, the
Guarantor Security Agreement, the Guarantor Pledge Agreement, the
Guarantor Trademark Security Agreement, the Mortgage and the
Assignment of Leases shall be in any respect incorrect, false or
misleading as of the time at which such representation or warranty
was given, or any representation, warranty or statement made by or
on behalf of the Company or any Guarantor to the Agent or any Lender
in any other Loan Documents or in any financial statement, report or
certificate furnished pursuant to this Agreement shall be in any
material respect incorrect, false or misleading as of the time at
which such representation, warranty or statement was made; or
(g) The Company or any of its Subsidiaries fails to make
any payment as and when such payment is due upon any Indebtedness
having an aggregate unpaid principal balance in excess of $250,000,
other than Indebtedness owing or arising pursuant to this Agreement
and the Notes or the Swing Line Note, or any other default, event or
condition shall have occurred or exist with respect to any such
other Indebtedness, or under any agreement or instrument evidencing,
securing or related to such other Indebtedness, the effect of which
is to cause, or to permit the holder or owner of such Indebtedness
to cause, such Indebtedness or any portion thereof, to become due
prior to its stated maturity date or prior to its regularly
scheduled dates of payment; or
(h) The Company or any of its Subsidiaries makes an
assignment for the benefit of its creditors or files a voluntary
petition seeking relief under any provision of any bankruptcy,
reorganization, arrangement, insolvency or readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect; or
(i) Any involuntary petition is filed against the
Company or any of its Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect, and such petition shall remain undismissed for
a period of sixty (60) days or the Company approves, consents or
acquiesces thereto; or
(j) The Company incurs any liability or is exposed to
any potential liability under any employee benefit plan that has or
would have a Materially Adverse Effect; or
(k) Final judgment for the payment of money in excess of
$250,000 (not fully covered by insurance) or otherwise having a
Materially Adverse Effect shall have been rendered against the
Company or any of its Subsidiaries and the same shall have remained
unpaid, unstayed on appeal, undischarged, or undismissed for a
period of sixty (60) days, or such longer period as may be permitted
by Applicable Law, during which execution may not be made, provided
no judgment Lien has attached or continues to attach to the assets
of the Company or such Subsidiary during such longer period; or
(l) The Company fails to close and have funded by
lenders at least $15,000,000 in Subordinated Debt, evidenced by
subordinated notes issued by the Company, substantially similar to
the Senior Subordinated Debt Offering, and in any event in form and
substance satisfactory to the Lenders, on or before November 17,
1997; or
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(m) An Event of Default occurs under any Subordinated
Debt document; or
(n) Any Change in Control occurs.
SECTION 8.02. REMEDIES ON DEFAULT.
(a) Upon (i) the occurrence and during the continuation
of an Event of Default (other than an Event of Default described in Section
8.01(h) or (i)) and (ii) the receipt of written instructions by the Agent from
any Lender, the Agent shall (x) terminate all obligations of the Lenders to the
Company, including, without limitation, the Commitments and all obligations to
make Advances under this Agreement, and (y) declare the Notes and the Swing Line
Note, including, without limitation, principal, accrued interest and costs of
collection (including, without limitation, reasonable attorneys' fees if
collected by or through an attorney at law or in bankruptcy, receivership or
other judicial proceedings) and all other Obligations immediately due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are expressly waived.
(b) Upon the occurrence of an Event of Default under
Section 8.01(h) or (i) all obligations of the Lenders to the Company, including,
without limitation, the Commitments, shall terminate automatically and the Notes
and the Swing Line Note, including, without limitation, principal, accrued
interest and costs of collection (including, without limitation, reasonable
attorneys' fees if collected by or through an attorney at law or in bankruptcy,
receivership or other judicial proceedings) and all other Obligations shall be
immediately due and payable, without presentment, demand, protest, or any other
notice of any kind, all of which are expressly waived.
(c) Upon the occurrence of an Event of Default and
acceleration of the Notes and the Swing Line Note as provided in (a) or (b)
above, each of the Lenders and the Agent, or any of them, may pursue any remedy
available under this Agreement, the Notes, the Swing Line Note, the Security
Documents or any other Loan Document, or available at law or in equity, all of
which shall be cumulative. The order and manner in which the rights and remedies
of the Lenders under the Loan Documents and otherwise may be exercised shall be
determined by the Required Lenders.
(d) Regardless of how each Lender may treat the
payments for the purpose of its own accounting, for the purpose of computing the
Company's obligations hereunder and under the Notes and the Swing Line Note, no
application of the payments will cure any Event of Default or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents or prevent the exercise, or continued exercise, of rights or remedies
of the Lenders hereunder or under applicable law.
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ARTICLE IX
THE AGENT
SECTION 9.01. APPOINTMENT AND AUTHORIZATION. Each
Lender hereby designates SunTrust as Agent to act as herein specified. Each
Lender hereby irrevocably authorizes, and each holder of any Note or by the
acceptance of a Note shall be deemed irrevocably to authorize, the Agent to take
such action on its behalf under the provisions of this Agreement and the Notes
and any other instruments and agreements referred to herein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agent may perform any of
its duties hereunder by or through its agents or employees.
SECTION 9.02. NATURE OF DUTIES OF THE AGENT. The Agent
shall have no duties or responsibilities to the other Lenders except those
expressly set forth in this Agreement. Neither the Agent nor any of its
officers, directors, employees or agents shall be liable for any action taken or
omitted by it as such hereunder or in connection herewith, unless caused by its
or their gross negligence or willful misconduct. The Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of any Lender; and
nothing in this Agreement, expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this
Agreement except as expressly set forth herein. The Agent agrees to give each
Lender prompt notice of the Agent's receipt from the Company of any notice under
this Agreement.
SECTION 9.03. LACK OF RELIANCE ON THE AGENT.
(a) Each Lender agrees that, independently and without
reliance upon the Agent, any other Lender, or the directors, officers, agents or
employees of the Agent or of any other Lender, each Lender, to the extent it
deems appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Company and its
Subsidiaries in connection with the taking or not taking of any action in
connection with this Agreement and the other Loan Documents, including the
decision to enter into this Agreement, and (ii) its own appraisal of the
creditworthiness of the Company and its Subsidiaries and, except as expressly
provided in this Agreement, the Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession
before the making of any Advance or at any time or times thereafter.
(b) The Agent shall not be responsible to any Lender
for any recitals, statements, information, representations or warranties herein
or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Agreement or any
other Loan Documents or the financial condition of the Company or its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Loan Documents, or the financial condition of the Company
or its Subsidiaries, or the existence or possible existence of any Default or
Event of Default.
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SECTION 9.04. CERTAIN RIGHTS OF THE AGENT.
(a) If the Agent shall request instructions from the
Required Lenders with respect to any act or action (including the failure to
act) in connection with this Agreement or any other Loan Documents, the Agent
shall be entitled to refrain from such act or taking such action unless and
until the Agent shall have received instructions from the Required Lenders and
the 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 Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders;
PROVIDED, HOWEVER, that the Agent shall not be required to act or not act in
accordance with any instructions of the Required Lenders if to do so would
expose the Agent to personal liability or would be contrary to any Loan Document
or to Applicable Law.
(b) The Agent may assume that no Event of Default has
occurred and is continuing, unless the Agent has received notice from the
Company stating the nature of the Event of Default, or has received notice from
a Lender stating the nature of the Event of Default and that such Lender
considers the Event of Default to have occurred and to be continuing.
(c) If the Agent has notice, or has received notice,
that an Event of Default has occurred and is continuing, the Agent shall give
notice thereof to the Lenders and shall act or not act upon the instructions of
the Required Lenders, PROVIDED that the Agent shall not be required to act or
not act if to do so would expose the Agent to personal liability or would be
contrary to any Loan Document or to Applicable Law, and PROVIDED FURTHER, that
if the Required Lenders fail, for five days after the receipt of notice from the
Agent, to instruct the Agent, then the Agent, in its discretion, may act or not
act as it deems advisable for the protection of the interests of the Lenders and
shall be fully protected in so acting.
SECTION 9.05. LIABILITY OF THE AGENT. Neither the Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or not taken by them under or in connection with the Loan
Documents, EXCEPT for their own gross negligence or willful misconduct. Without
limitation on the foregoing, the Agent and its directors, officers, agents, and
employees:
(a) may treat the payee of any Note as the holder
thereof until the Agent receives notice of the assignment or
transfer thereof in form satisfactory to the Agent, signed by the
payee, and may treat each Lender as the owner of that Lender's
interest in the obligations due to such Lender for all purposes of
this Agreement and the other Loan Documents until the Agent receives
notice of the assignment or transfer thereof, in form satisfactory
to the Agent, signed by such Lender;
(b) may consult with outside legal counsel (including
King & Spalding), in-house legal counsel, independent public
accountants, in-house accountants and other professionals, or other
experts selected by it with reasonable care, or with legal counsel,
independent public accountants, or other experts for the Company,
and shall not be liable for any action taken or not taken by it or
them in good faith in accordance with the advice of such legal
counsel, independent public accountants, or experts;
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(c) will not be responsible to any Lender for any
statement, warranty, or representation made in any of the Loan
Documents or in any notice, certificate, report, request, or other
statement (written or oral) in connection with any of the Loan
Documents;
(d) except to the extent expressly set forth in the Loan
Documents, will have no duty to ascertain or inquire as to the
performance or observance by the Company or any of its Subsidiaries
or any other Person of any of the terms, conditions, or covenants of
any of the Loan Documents or to inspect the property, books, or
records of the Company or any of its Subsidiaries or other Person;
(e) will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency, or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith;
(f) will not incur any liability by acting or not acting
in reliance upon any Loan Document, notice, consent, certificate,
document, statement, telex, telecopier message or other instrument
or writing believed by it or them to be genuine and to have been
signed, sent or made by the proper Person; and
(g) will not incur any liability for any arithmetical
error in computing any amount payable to or receivable from any
Lender hereunder, including, without limitation, payment of
principal and interest on the Notes, Advances and other amounts;
PROVIDED that promptly upon discovery of such an error in
computation, the Agent, the Lender and (to the extent applicable)
the Company shall make such adjustments as are necessary to correct
such error and to restore the parties to the position that they
would have occupied had the error not occurred.
SECTION 9.06. INDEMNIFICATION. Each Lender shall,
ratably in accordance with the respective outstanding principal amount of its
Advances, indemnify and hold the Agent and its directors, officers, agents and
employees harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including, without limitation, attorneys' fees
and disbursements) that may be imposed on, incurred by, or asserted against it
or them in any way relating to or arising out of the Loan Documents (other than
losses incurred by reason of the failure by the Company to pay the obligations
due to the Lenders hereunder or under the Notes) or any action taken or not
taken by it as Agent thereunder, EXCEPT for the gross negligence or willful
misconduct of the Agent. Without limitation of the foregoing, each Lender shall
reimburse the Agent upon demand for that Lender's ratable share of any cost or
expense incurred by the Agent in connection with the negotiation, preparation,
execution, delivery, administration, amendment, waiver, refinancing,
restructuring, reorganization (including a bankruptcy reorganization) or
enforcement of the Loan Documents, to the extent that the Company is required to
pay that cost or expense but fails to do so upon demand.
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SECTION 9.07. AGENT AND AFFILIATES. SunTrust (and each
successor Agent) has the same rights and powers under the Loan Documents as any
other Lender and may exercise the same as though it were not the Agent; and the
term "the Lenders" or "Lender" includes SunTrust in its individual capacity.
SunTrust (and each successor Agent) and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Company and any Affiliate of the Company, as if it were not
the Agent and without any duty to account therefor to the Lenders. SunTrust (and
each successor Agent) need not account to any other Lender for any monies
received by it for reimbursement of its costs, expenses and fees as the Agent
hereunder, or for any monies received by it in its capacity as a Lender
hereunder, except as otherwise provided herein. This Agreement shall not be
deemed to constitute a joint venture or partnership among the Lenders.
SECTION 9.08. SUCCESSOR AGENT. The Agent may resign as
such at any time by written notice to the Company and the Lenders, to be
effective upon a successor's acceptance of appointment as Agent. In such event,
the Required Lenders shall appoint a successor Agent or Agents who must be from
among the Lenders; PROVIDED that the Agent shall be entitled to appoint a
successor Agent from among the Lenders, subject to acceptance of appointment by
that successor Agent if the Required Lenders have not appointed a successor
Agent within thirty (30) calendar days after the date the Agent gave notice of
resignation or was removed; and PROVIDED FURTHER that if no such successor Agent
is appointed from among the Lenders, an Agent who is not a Lender may be
appointed, which shall be a bank organized under the laws of the United States
of America or any State thereof, or any affiliate of such bank, having a
combined capital and surplus of at least $500,000,000. Upon a successor's
acceptance of appointment as Agent the successor will thereupon succeed to and
become vested with all the rights, powers, privileges, and duties of the Agent
under the Loan Documents, and the resigning Agent will thereupon be discharged
from its duties and obligations thereafter arising under the Loan Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. SURVIVAL. All covenants, agreements,
warranties and representations made herein, in the other Loan Documents, or in
any certificates or other documents delivered in connection with this Agreement
by or on behalf of the Company or any Guarantor shall survive the advances of
money made by the Lenders to the Company hereunder and the delivery of this
Agreement and the other Loan Documents, and all such covenants, agreements,
warranties and representations shall be binding upon and inure to the benefit of
the Company, the Guarantors, the Lenders, the Agent, and their respective
successors and assigns, whether or not so expressed, PROVIDED, HOWEVER, that the
Company may not assign or transfer any of its rights under this Agreement
without the prior written consent of each of the Lenders.
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SECTION 10.02. AMENDMENTS; CONSENTS. No amendment,
modification, supplement, termination, or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Company, any Guarantor or any Subsidiary of the Company therefrom, may in any
event be effective unless in writing signed by the Required Lenders, and then
only in the specific instance and for the specific purpose given; PROVIDED,
HOWEVER, that without the approval in writing of all Lenders, no amendment,
modification, supplement, termination, waiver, or consent may be effective:
(a) to amend or modify the principal of, the rate of
interest payable on, or any fees with respect to, any Lender's Note,
the Fees or the amount of any Lender's Commitment;
(b) to postpone any date fixed for any payment of
principal of, or any installment of interest on, any Lender's Notes
or the Fees, or to extend the term of any Lender's Commitment;
(c) to amend or modify the definitions of "Commitment"
or "Required Lenders" or the provisions of Section 10.07 or of this
Section 10.02;
(d) to release any of the Collateral pledged to the
Agent for the benefit of, INTER ALIA, the Agent or the Lenders
pursuant to the Security Documents to secure the Obligations, if any
Obligations are outstanding or any Commitment has not been
terminated;
(e) to consent to the existence of any other lien,
security interest or encumbrance on the Collateral except as
otherwise permitted herein;
(f) to subordinate any of the Obligations or the
Commitments to any other indebtedness of the Company or any of its
Subsidiaries; and
(g) to release any Guarantor or to consent to the
termination or modification of any Guaranty Agreement.
Any amendment, modification, supplement, termination, waiver or consent effected
in accordance with this Section 10.02 shall apply equally to, and shall be
binding upon, all Lenders and the Agent.
SECTION 10.03. NOTICES. All notices, consents, demands
and other communications provided for hereunder, unless otherwise provided,
shall be in writing and mailed, sent by facsimile transmission or delivered to
the parties hereto addressed as follows or at such other address as shall be
designated by any party in a written notice to the other party hereto:
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If to the Company:
NuCo2 Inc.
0000 XX Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxxx
Chief Financial Officer
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
If to the Agent:
SunTrust Bank, South Florida, National Association
000 X. Xxx Xxxx Xxxx.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Banking Department
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Attn: G. Xxxxxx Xxxxx, Esq.
Telecopier No.: 000-000-0000
Confirmation No.: 000-000-0000
If to a Lender:
The address, telecopier and confirmation numbers set
forth opposite its name on the signature pages hereof.
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All notices that are sent by facsimile transmission or
are hand delivered shall be deemed to be delivered upon receipt. All notices
which are mailed shall be mailed first class certified mail--return receipt
requested, postage prepaid, and shall be deemed delivered upon actual receipt or
three days after being deposited in the mail, whichever shall occur first.
The parties hereto agree that their signatures by
facsimile shall be effective and binding upon them as though executed in ink on
paper, and that the parties shall exchange original ink signatures promptly
following any such delivery by facsimile.
SECTION 10.04. SEVERABILITY; TIME OF ESSENCE. Every
provision of this Agreement and the other Loan Documents are intended to be
severable. If any term or provision of this Agreement or the Loan Documents, or
any other document delivered in connection herewith shall be unenforceable in
any respect, the enforceability of the remaining provisions shall not thereby be
affected. Time is of the essence of this Agreement and the other Loan Documents.
SECTION 10.05. GOVERNING LAW; SUBMISSION TO
JURISDICTION.
(a) THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND ALL
OTHER DOCUMENTS CONTEMPLATED HEREBY, AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF FLORIDA
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF FLORIDA OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF FLORIDA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY
JURY, AND THE COMPANY HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) Nothing herein shall affect the right of the
Lenders and the Agent to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Company in any
other jurisdiction.
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SECTION 10.06. PAYMENT OF COSTS. The Company shall pay
all reasonable costs, expenses, taxes and fees incurred by the Agent in
connection with the negotiation, preparation, execution and delivery of this
Agreement, the term sheet and the Commitment Letter relating to this Agreement,
the Security Documents and all other Loan Documents, including, without
limitation, all of the reasonable professional fees and expenses of King &
Spalding, special counsel to the Agent, as set forth in the Commitment Letter.
SECTION 10.07. INDEMNITY. The Company agrees to
protect, indemnify and save harmless the Agent and each Lender, and all
directors, officers, employees and agents of the Agent and each Lender, from and
against any and all (i) claims, demands and causes of action of any nature
whatsoever brought by any person or entity not a party to this Agreement and
arising from or related or incident to this Agreement or any other Loan
Document, (ii) costs and expenses incident to the defense of such claims,
demands and causes of action, including, without limitation, reasonable
attorneys' fees, and (iii) liabilities, judgments, settlements, penalties and
assessments arising from such claims, demands and causes of action, PROVIDED
such claims, costs and liabilities are not the result of the gross negligence or
willful misconduct of such Agent or such Lender. The indemnity contained in this
Section shall survive the termination of this Agreement.
SECTION 10.08. BENEFIT OF THE AGREEMENT.
(a) This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto, PROVIDED that the Company may not assign or transfer any of
its interest hereunder without the prior written consent of the Lenders, and no
such assignment or transfer of any such obligations shall relieve the Company of
its obligations hereunder unless each Lender shall have consented to such
release in a writing specifically referring to the obligation from which the
Company is to be released.
(b) Any Lender may make, carry or transfer Advances at,
to or for the account of, any of its branch offices or the office of an
Affiliate of such Lender. Any Lender may at any time assign all or any portion
of its rights in this Agreement and the Notes issued to it to a Federal Reserve
Bank; PROVIDED that no such assignment shall release the Lender from any of its
obligations hereunder.
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(c) Each Lender may assign or delegate all or a portion
of its interests, rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of any of its Commitments and the Advances
at the time owing to it and the Notes held by it) to another financial or
lending institution or entity; PROVIDED, HOWEVER, that (i) the Agent and the
Company must give their prior written consent to such assignment (which consent,
in the case of the Company, shall not be unreasonably withheld) unless such
assignment is to an Affiliate of the assigning Lender or, in the case of the
Company, unless an Event of Default has occurred and is continuing, (ii) such
assignment or delegation is complete or is in minimum increments of $5,000,000,
and (iii) the parties to each such assignment shall execute and deliver to the
Agent an Assignment Agreement, and, together with a Note or Notes subject to
such assignment and, unless such assignment is to an Affiliate of such Lender, a
processing and recordation fee of $3,000. The Company shall not be responsible
for such processing and recordation fee or any costs or expenses incurred by any
Lender (other than the Agent) in connection with such assignment. From and after
the effective date specified in each Assignment Agreement, which effective date
shall be at least five (5) Business Days after the execution thereof, the
assignee thereunder shall be a party hereto and to the extent of the interest
assigned by such Assignment Agreement, have the rights and obligations of a
Lender under this Agreement. Within five (5) Business Days after receipt of the
notice and the Assignment Agreement, the Company, at its own expense, shall
execute and deliver to the Agent, in exchange for the surrendered Note or Notes,
a new Note or Notes to the order of such assignee in a principal amount equal to
the applicable Commitments assumed by it pursuant to such Assignment and
Acceptance and new Note or Notes to the assigning Lender in the amount of its
retained Commitment or Commitments. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the date of the surrendered Note or
Notes which they replace, and shall otherwise be in substantially the form
attached hereto.
(d) Each Lender may from time to time sell or otherwise
grant participations in all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including all or a portion of its
Commitments and the Advances owing to it and the Notes held by it) to another
financial or lending institution or entity, whereupon the holder of any such
participation, if the participation agreement so provides, shall be entitled to
all of the rights of a Lender hereunder; PROVIDED, HOWEVER, that (i) the Agent
must give its prior written consent to such participation unless such
participation is to an Affiliate of such Lender, (ii) such selling Lender's
obligations under this Agreement shall remain unchanged, (iii) such selling
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (iv) the Company, the Agent and other
Lenders shall continue to deal solely and directly with each Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents, and such Lender shall retain the sole right to enforce
the obligations of the Company relating to the Advances and to approve any
amendment, modification or waiver of any provisions of this Agreement or the
other Loan Documents. Any Lender selling a participation hereunder shall provide
prompt written notice to the Company of the name of such participant.
SECTION 10.09. SUBORDINATION OF INDEBTEDNESS. Any
Indebtedness of any Guarantor now or hereafter owed to the Company is hereby
subordinated in right of payment to the payment by such Guarantor of its
Guaranty Obligations such that if a default in the payment of the Obligations
shall have occurred and be continuing, any such Indebtedness of such Guarantor
owed to the Company, if collected or received by the Company, shall be held in
trust by the Company for the holders of the Obligations and be paid over to the
Lenders and the Agent for application of such Guarantor's Guaranty Obligations.
-63-
SECTION 10.10. MAXIMUM INTEREST RATE. Nothing contained
in this Agreement or any Note or Swing Line Note shall require the Company to
pay interest at a rate exceeding the Maximum Permissible Rate. If interest
payable to any Lender for any period would exceed the Maximum Permissible Rate,
such interest shall be reduced automatically to the maximum amount that will not
exceed the Maximum Permissible Rate, and interest payable to any Lender for any
subsequent period, to the extent less than the Maximum Permissible Rate, shall,
to that extent, be increased by the aggregate amount of all such reductions.
SECTION 10.11. ENTIRE AGREEMENT. This Agreement and the
other Loan Documents executed and delivered contemporaneously herewith, together
with the exhibits and schedules attached hereto and thereto, constitute the
entire understanding of the parties with respect to the subject matter hereof,
and any other prior or contemporaneous agreements, whether written or oral, with
respect thereto, including, without limitation, the Commitment Letter, which is
expressly superseded hereby; PROVIDED, HOWEVER, that the indemnities of the
Company in favor of the Lenders and SunTrust Capital Markets, Inc. contained in
the Commitment Letter shall survive the execution and delivery of this
Agreement. The execution of this Agreement and the other Loan Documents by the
Company was not based upon any facts or materials provided by the Agent or any
Lender, nor was the Company or any Guarantor induced to execute this Agreement
or any other Loan Document by any representation, statement or analysis made by
the Agent or any Lender.
SECTION 10.12. SET-OFF. Upon the occurrence and during
the continuance of any Event of Default, each Lender, and each of its branches
and offices, is hereby authorized by the Company, at any time and from time to
time, without notice to the Company (i) to set off against, and to appropriate
and apply to the payment of the Obligations (in each case whether matured or
unmatured) any and all amounts owing by such Lender, or any such office or
branch, to the Company (whether payable in Dollars or any other currency,
whether matured or unmatured, and, in the case of deposits, whether general or
special, time or demand and however evidenced) and (ii) pending any such action,
to the extent necessary, to hold such amounts as collateral to secure such
Obligations and Guaranty Obligations and to return as unpaid for insufficient
funds any and all checks and other items drawn against any deposits so held as
such Lender in its sole discretion may elect. Each Lender shall give the Company
notice of its intention to exercise its rights under this Section 10.12;
PROVIDED, HOWEVER, that failure by such Lender to give the Company notice shall
not prevent such Lender from exercising its rights as provided in this Section.
The Company, to the fullest extent it may effectively do so under Applicable
Law, agrees that any holder of a participation in any Advance may exercise
rights of set-off and counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Company in the amount of such participation.
SECTION 10.13. COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original and all of which, taken together, shall constitute one and the same
instrument.
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SECTION 10.14. REPLACEMENT NOTES. Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of any Note or Swing Line Note, and in the case of any such loss,
theft or destruction, upon delivery of any indemnity agreement reasonably
satisfactory to the Company or, in the case of any such mutilation, upon
surrender and cancellation of such Note or Swing Line Note, the Company shall
execute and deliver, in lieu thereof, a replacement note identical in form and
substance to such Note or Swing Line Note and dated as of the date of such Note
or Swing Line Note, and upon such execution and delivery of the replacement note
all references in this Agreement and in all other Loan Documents to the Note or
Swing Line Note shall be deemed to refer to such replacement note.
SECTION 10.15. RELEASE. In consideration of the Agent's
and the Lenders' agreement to enter into this Agreement and to establish the
Commitments hereunder, the Company hereby (a) releases, acquits and forever
discharges the Agent and the Lenders, their respective agents, employees,
officers, directors, servants, representatives, attorneys, affiliates,
successors and assigns (collectively, the "RELEASED PARTIES") from any and all
liabilities, claims, suits, debts, liens, losses, causes of action, demands,
rights, damages, costs and expenses of any kind, character or nature whatsoever,
known or unknown, fixed or contingent, that the Company may have or claim to
have against the Agent and the Lenders which might arise out of or be connected
with any act of commission or omission of the Agent or the Lenders existing or
occurring on or prior to the date of this Agreement, including, without
limitation, any claims, liabilities or obligations relating to or arising out of
or in connection with the Loan Documents (including, without limitation, arising
out of or in connection with the initiation, negotiation, closing or
administration of the transactions contemplated thereby or related thereto),
from the beginning of time until the execution and delivery of this Agreement
(the "RELEASED CLAIMS") and (b) agrees forever to refrain from commencing,
instituting or prosecuting any lawsuit, action or other proceeding against the
Released Parties with respect to any and all Released Claims.
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[SIGNATURE PAGE TO THE REVOLVING CREDIT AGREEMENT]
WITNESS the hand and seal of the parties hereto through
their duly authorized officers, as of the date first above written.
NUCO2 INC.,
A FLORIDA CORPORATION
Address:
c/o NuCo2 Inc. By: /S/ XXXXXX X. XXXXXXX
---------------------------------
0000 X.X. Xxxxxx Xxxxx Name: Xxxxxx X. Xxxxxxx
Xxxxxx, Xxxxxxx 00000 Title: President
Attest: /S/ XXXXX XXXXXXXX
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Financial Officer
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION, INDIVIDUALLY
AND AS AGENT
By: /S/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
