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EXHIBIT 10.4
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AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
AMERISTEEL CORPORATION
as Borrower,
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent and as Lender,
THE BANK OF TOKYO-MITSUBISHI, LTD
as Collateral Agent and Documentation Agent and as Lender,
FIRST UNION NATIONAL BANK,
as Co-Agent and as Lender,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
July 14, 1998
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TABLE OF CONTENTS
ARTICLE I
Definitions and Terms
Page
1.1. Amendment and Restatement.......................................3
1.2. Definitions.....................................................3
1.3. Rules of Interpretation........................................28
ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans................................................30
2.2. Payment of Interest............................................32
2.3. Payment of Principal...........................................33
2.4. Manner of Payment..............................................33
2.5. Revolving Notes................................................34
2.6. Pro Rata Payments..............................................34
2.7. Reductions.....................................................34
2.8. Conversions and Elections of Subsequent Interest Periods.......35
2.9. Increase and Decrease in Amounts...............................35
2.10. Unused Fee.....................................................35
2.11. Deficiency Advances; Failure to Purchase Participations........36
2.12. Use of Proceeds................................................36
2.13. Swing Line.....................................................37
ARTICLE III
Letters of Credit
3.1. Letters of Credit..............................................39
3.2. Reimbursement..................................................39
3.3. Letter of Credit Facility Fees.................................42
3.4. Administrative Fees............................................43
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ARTICLE IV
Security
4.1. Security........................................................44
4.3. Stock Pledge. ..................................................44
4.4. Security Interests. ............................................44
4.5. Further Assurances..............................................44
4.6. Information Regarding Collateral................................45
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return...............................46
5.2. Limitation on Types of Loans....................................47
5.3. Illegality......................................................48
5.4. Treatment of Affected Loans.....................................48
5.5. Compensation....................................................48
5.6. Taxes...........................................................49
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance...................................51
6.2. Conditions of Revolving Loans and Letter of Credit..............53
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority......................................55
7.2. Loan Documents..................................................55
7.3. Solvency........................................................56
7.4. Subsidiaries and Stockholders...................................56
7.5. Ownership Interests.............................................56
7.6. Financial Condition.............................................56
7.7. Title to Properties.............................................57
7.8. Taxes...........................................................57
7.9. Other Agreements................................................57
7.10. Litigation......................................................57
7.11. Margin Stock....................................................58
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7.12. Investment Company..............................................58
7.13. Patents, Etc....................................................58
7.14. No Untrue Statement.............................................58
7.15. No Consents, Etc................................................58
7.16. Employee Benefit Plans..........................................59
7.17. No Default......................................................60
7.18. Environmental Laws..............................................60
7.19. Employment Matters..............................................60
7.20. RICO............................................................61
ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc..........................................62
8.2. Maintain Properties.............................................63
8.3. Existence, Qualification, Etc...................................64
8.4. Regulations and Taxes...........................................64
8.5. Insurance.......................................................64
8.6. True Books......................................................64
8.7. Right of Inspection.............................................64
8.8. Observe all Laws................................................65
8.9. Governmental Licenses...........................................65
8.10. Covenants Extending to Other Persons............................65
8.11. Officer's Knowledge of Default..................................65
8.12. Suits or Other Proceedings......................................65
8.13. Notice of Environmental Complaint or Condition..................65
8.14. Environmental Compliance........................................65
8.15. Indemnification.................................................66
8.16. Further Assurances..............................................66
8.17. Employee Benefit Plans..........................................66
8.18. Continued Operations............................................67
8.19. New Subsidiaries................................................67
ARTICLE IX
Negative Covenants
9.1. Financial Covenants.............................................70
9.2. Acquisitions....................................................70
9.3 Capital Expenditures............................................70
9.4. Liens...........................................................71
9.5. Indebtedness....................................................72
9.6. Transfer of Assets..............................................73
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9.7. Investments.....................................................73
9.8. Merger or Consolidation.........................................74
9.9. Restricted Payments.............................................74
9.10. Transactions with Affiliates....................................75
9.11. Compliance with ERISA...........................................75
9.12. Fiscal Year.....................................................76
9.13. Dissolution, etc................................................76
9.14. Limitations on Sales and Leasebacks.............................76
9.15. Change in Control...............................................77
9.16. Rate Hedging Obligations........................................77
9.17. Negative Pledge Clauses.........................................77
9.18. Prepayments, Etc. of Indebtedness...............................77
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default...............................................78
10.2. Agents to Act...................................................81
10.3. Cumulative Rights...............................................81
10.4. No Waiver.......................................................81
10.5. Allocation of Proceeds..........................................81
ARTICLE XI
The Agents
11.1. Appointment, Powers, and Immunities.............................83
11.2. Reliance by Agents..............................................84
11.3. Defaults........................................................84
11.4. Rights as Lender................................................84
11.5. Indemnification.................................................85
11.6. Non-Reliance on Agents and Other Lenders........................85
11.7. Resignation of Agent............................................85
11.8. Sharing of Payments, etc........................................86
11.9. Fees............................................................86
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations..................................87
12.2. Notices.........................................................88
12.3. Right of Set-off; Adjustments...................................90
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12.4. Survival........................................................90
12.5. Expenses........................................................91
12.6. Amendments and Waivers..........................................91
12.7. Counterparts....................................................92
12.8. Termination.....................................................92
12.9. Indemnification; Limitation of Liability........................92
12.10. Severability....................................................93
12.11. Entire Agreement................................................93
12.12. Agreement Controls..............................................93
12.13. Usury Savings Clause............................................93
12.14. Payments........................................................94
12.15. Governing Law; Waiver of Jury Trial.............................94
EXHIBIT A Applicable Commitment Percentages..........................A-1
EXHIBIT B Form of Assignment and Acceptance..........................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative.............................................C-1
EXHIBIT D-1 Form of Borrowing Notice...................................D-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans...............D-2-1
EXHIBIT E Form of Interest Rate Selection Notice.....................E-1
EXHIBIT F-1 Form of Revolving Note...................................F-1-1
EXHIBIT G Form of Opinion of Borrower's Counsel......................G-1
EXHIBIT H Compliance Certificate.....................................H-1
EXHIBIT I Form of Facility Guaranty..................................I-1
EXHIBIT J Form of Security Agreement ................................J-1
Schedule 4.6 Information Regarding Collateral...........................S-2
Schedule 7.4 Subsidiaries and Investments in Other Persons..............S-3
Schedule 7.6 Indebtedness...............................................S-4
Schedule 7.7 Liens......................................................S-5
Schedule 7.8 Tax Matters................................................S-6
Schedule 7.10 Litigation.................................................S-7
Schedule 7.18 Environmental..............................................S-9
Schedule 8.5 Insurance.................................................S-10
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 14, 1998
(the "Agreement"), is made by and among AMERISTEEL CORPORATION, a Florida
corporation having its principal place of business in Tampa, Florida (the
"Borrower"), NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, in its capacity as a
Lender ("NationsBank"), and each other financial institution executing and
delivering a signature page hereto and each other financial institution which
may hereafter execute and deliver an instrument of assignment with respect to
this Agreement pursuant to Section 12.1 (hereinafter such financial institutions
may be referred to individually as a "Lender" or collectively as the "Lenders"),
and NATIONSBANK, NATIONAL ASSOCIATION, a national banking association organized
and existing under the laws of the United States, in its capacity as
administrative agent for the Lenders (in such capacity, and together with any
successor administrative agent appointed in accordance with the terms of Section
11.7, the "Administrative Agent"), FIRST UNION NATIONAL BANK, a national banking
association organized and existing under the laws of the United States, in its
capacity as a co-agent (the "Co-Agent"), and THE BANK OF TOKYO-MITSUBISHI, LTD
in its capacity as collateral agent and documentation agent for the Lenders (in
such capacity, the "Collateral Agent" and, together with the Administrative
Agent, the "Agents");
WITNESSETH:
WHEREAS, the Borrower, certain lenders (the "Original Lenders") and The
Bank of Tokyo, Ltd., New York Agency, as agent (the "Original Agent") have
entered into a Credit Agreement dated June 9, 1995 (as amended, the "Original
Agreement") pursuant to which the Original Lenders have made available to the
Borrower a revolving credit facility of up to $140,000,000, which revolving
credit facility is evidenced by revolving notes dated June 9, 1995 (the
"Original Notes"); and
WHEREAS, the obligations of the Borrower under the Original Agreement
are secured by certain assets of the Borrower as described in the Security
Agreement (as defined in the Original Agreement) between the Borrower and the
Original Agent; and
WHEREAS, the obligations of the Borrower under the Original Agreement
are guaranteed by AmeriSteel Finance, Inc. ("AFI") pursuant to the terms of the
Guaranty dated December 30, 1996 (the "AFI Guaranty"); and
WHEREAS, the obligations of AFI under the AFI Guaranty are secured by
certain assets of AFI as described in the security agreement between AFI and the
Original Agent dated December 30, 1996; and
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WHEREAS, the Borrower has issued its 8 3/4% Senior Notes Due 2008 in
the aggregate principal amount of $130,000,000 (the "Senior Notes"); and
WHEREAS, the Borrower has requested that the Lenders party hereto amend
and restate the Original Agreement in its entirety in the manner set forth
herein and that the Administrative Agent perform certain of the duties of the
Original Agent as described herein; and
WHEREAS, the Lenders and the Agents are willing to amend and restate
the Original Agreement and make available to the Borrower a revolving credit
facility of up to $150,000,000, the proceeds of which are to be used for general
corporate purposes and which shall include a letter of credit facility of up to
$50,000,000 for the issuance of standby and commercial letters of credit and a
swing line sublimit of up to $15,000,000, upon the terms and conditions set
forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agents hereby agree
as follows:
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ARTICLE I
Definitions and Terms
1.1. Amendment and Restatement. The Borrower, the Agents and the
Lenders hereby agree that upon the effectiveness of this Agreement, the terms
and provisions of the Original Agreement shall be and hereby are amended and
restated in their entirety by the terms and conditions of this Agreement and the
terms and provisions of the Original Agreement, except as otherwise provided in
the next paragraph, shall be superseded by this Agreement.
Notwithstanding the amendment and restatement of the Original Agreement
by this Agreement, the Borrower shall continue to be liable to the Original
Agent and the Original Lenders with respect to agreements on the part of the
Borrower under the Original Agreement to indemnify and hold harmless the
Original Agent and the Original Lenders from and against all claims, demands,
liabilities, damages, losses, costs, charges and expenses to which the Original
Agent and the Original Lenders may be subject arising in connection with the
Original Agreement. All security interests heretofore created in favor of the
Collateral Agent for the benefit of the Original Lenders shall continue in full
force and effect and shall continue to secure payment of all of the Obligations.
This Agreement is given as a substitution of, and not as a payment of, the
obligations of Borrower under the Original Agreement and is not intended to
constitute a novation of the Original Agreement. Except as otherwise selected by
the Borrower by delivery of a Borrowing Notice or Interest Rate Selection Notice
prior to the Closing Date in accordance with the terms hereof, upon the
effectiveness of this Agreement all amounts outstanding and owing by Borrower
under the Original Agreement as of the Closing Date, shall constitute Advances
hereunder accruing interest with respect to the Base Rate Loans under the
Original Agreement, at the Base Rate hereunder. The parties hereto agree that
the Interest Periods for all Eurodollar Loans outstanding under the Original
Agreement on the Closing Date shall be terminated, the Original Lenders shall
grant a one-time waiver of any payments required under Section 2.6.3 of the
Original Agreement to the Lenders and the Borrower shall furnish to the
Administrative Agent Interest Rate Selection Notices for existing Loans and
Borrowing Notices for additional Loans as may be required in connection with the
allocation of Loans among Lenders in accordance with their Applicable Commitment
Percentages.
1.2. Definitions. For the purposes of this Agreement, in addition
to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a line
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or lines of business conducted by such Person. Neither the merger of
FLS into the Borrower nor the acquisition of receivables from AFI shall
be deemed an Acquisition.
"Adjusted Federal Funds Rate" means, for any day, the rate per
annum equal to the sum of (a) the Federal Funds Rate for such day plus
one-quarter of one percent (0.25%) plus (b) the Applicable Margin used
to determine the Base Rate.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 10% or more of the
equity interest) of the Borrower; or 5% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
"AFI" means AmeriSteel Finance, Inc., a Delaware corporation,
a Subsidiary of the Borrower.
"AFI Guaranty" means the Guaranty dated December 30, 1996
executed by AFI in favor of the Lenders and the Collateral Agent, as
amended, modified or supplemented from time to time.
"AFI Security Agreement" means the Security Agreement dated
December 30, 1996 executed by AFI in favor of the Collateral Agent for
the benefit of the Lenders, as amended, modified or supplemented from
time to time.
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, a fraction, the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
Exhibit A; provided that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or
by such Lender effected in accordance with Section 12.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the
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Administrative Agent and the Borrower by written notice in accordance
with the terms hereof as the office by which its Loans of such Type are
to be made and maintained.
"Applicable Margin" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
Applicable
Margin
--------------------
Consolidated Leverage Base Eurodollar
Ratio Rate Rate
---------------------- ---- -----------
(a) Greater than 3.5 to 1.0 .50% 1.500%
(b) Equal to or less than 3.5 to 1.0
and greater than 3.0 to 1.0 .25% 1.250%
(c) Equal to or less than 3.0 to 1.0
and greater than 2.5 to 1.0 0% 1.00%
(d) Equal to or less than 2.50 to 1.0
and greater than 2.0 to 1.0 0% .750%
(e) Equal to or less than 2.0 to 1.0
and greater than 1.5 to 1.0 0% .625%
(f) Equal to or less than 1.5 to 1.0 0% .500%
The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in
the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Administrative Agent pursuant to Section 8.1(a)(ii)
and Section 8.1(b)(ii), subject to review and approval of such
computations by the Administrative Agent, and shall be effective
commencing on the first Business Day following the date such
certificate is received until the first Business Day following the date
on which a new certificate is delivered or is required to be delivered,
whichever shall first occur; provided however, if the Borrower shall
fail to deliver any such certificate within the time period required by
Section 8.1, then the Applicable Margin shall be .50% for Base Rate
Loans and 1.50% for Eurodollar Rate Loans from the date such
certificate was due until the appropriate certificate is so delivered.
Notwithstanding the foregoing, from the Closing Date through and
including the day following the date of delivery of the certificate
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delivered pursuant to Section 8.1(b)(ii) for the period ending
September 30, 1998, the Applicable Margin shall be 0% for Base Rate
Loans and .750% for Eurodollar Rate Loans.
"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
Applicable
Consolidated Leverage Unused
Ratio Fee
---------------------- ----------
(a) Greater than 3.5 to 1.0 .375%
(b) Equal to or less than 3.5 to 1.0
and greater than 3.0 to 1.0 .250%
(c) Equal to or less than 3.0 to 1.0
and greater than 2.5 to 1.0 .225%
(d) Equal to or less than 2.50 to 1.0
and greater than 2.0 to 1.0 .200%
(e) Equal to or less than 2.0 to 1.0
and greater than 1.5 to 1.0 .175%
(f) Equal to or less than 1.5 to 1.0 .175%
The Applicable Unused Fee shall be established at the end of each
fiscal quarter of the Borrower (the "Determination Date"). Any change
in the Applicable Unused Fee following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Administrative Agent pursuant to Section 8.1(a)(ii)
and Section 8.1(b)(ii), subject to review and approval of such
computations by the Administrative Agent and shall be effective
commencing on the first Business Day following the date such
certificate is received until the first Business Day following the date
on which a new certificate is delivered or is required to be delivered,
whichever shall first occur; provided however, if the Borrower shall
fail to deliver any such certificate within the time period required by
Section 8.1, then the Applicable Unused Fee shall be .375% from the
date such certificate was due until the appropriate certificate is so
delivered. Notwithstanding the foregoing, from the Closing Date through
and including the day following the date of delivery of the certificate
delivered pursuant to Section
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8.1(b)(ii) for the period ending September 30, 1998, the Applicable
Unused Fee shall be .200%.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, other than as permitted under Section 9.6
hereof, of (a) any of the assets, excluding cash and cash equivalents,
of the Borrower or its Subsidiaries where the Net Proceeds of such
disposition exceed $50,000, and (b) any of the capital stock, or
securities or investments exchangeable, exercisable or convertible for
or into, or otherwise entitling the holder to receive any of the
capital stock, of any Subsidiary (other than a disposition to a
Guarantor).
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Administrative Agent in connection with an
assignment of a Lender's interest under this Agreement pursuant to
Section 12.1.
"Authorized Representative" means any of the Chief Executive
Officer, the President or any Vice President of the Borrower or, with
respect to financial matters, the Chief Financial Officer or Assistant
Treasurer of the Borrower, or any other Person expressly designated by
the Board of Directors of the Borrower (or the appropriate committee
thereof) as an Authorized Representative of the Borrower, as set forth
from time to time in a certificate in the form of Exhibit C.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds
Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay NationsBank in
respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
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"Board of Directors" means either the board of directors of
the Borrower or any duly authorized committee of that board.
"Borrower's Account" means a demand deposit account number
3750656390 or any successor account with the Administrative Agent,
which may be maintained at one or more offices of the Administrative
Agent or an agent of the Administrative Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of Exhibits D-1 and D-2,
respectively.
"BOT" means The Bank of Tokyo, Ltd., New York Agency, and any
successor thereto by merger or consolidation.
"Business Day" means, (i) with respect to any Base Rate Loan
or Floating Rate Loan, any day which is not a Saturday, Sunday or a day
on which banks in the States of New York and North Carolina are
authorized or obligated by law, executive order or governmental decree
to be closed and, (ii) with respect to any Eurodollar Rate Loan, any
day which is a Business Day, as described above, and on which the
relevant international financial markets are open for the transaction
of business contemplated by this Agreement in London, England, New
York, New York and Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Administrative Agent together with any compliance
certificate delivered pursuant to Section 8.1(a) or (b), and (ii) with
respect to any Capital Lease entered into by the Borrower or its
Subsidiaries during such period, the present value of the lease
payments due under such Capital Lease over the term of such Capital
Lease applying a discount rate equal to the interest rate provided in
such lease (or in the absence of a stated interest rate, that rate used
in the preparation of the financial statements described in Section
8.1(a)), all the foregoing in accordance with GAAP applied on a
Consistent Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated) of such
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Person's equity interest (however designated), whether now outstanding
or issued after the Closing Date.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) other than
Kyoei Steel Ltd. and its Affiliates becomes the "beneficial
owner" (as defined in Rule 13d-3 of the Exchange Act ),
directly or indirectly, of more than 35% of the voting power
of all classes of Voting Stock of the Borrower;
(ii) the Borrower, either individually or in
conjunction with one or more of its Subsidiaries, sells,
assigns, conveys, transfers, leases or otherwise disposes of,
all or substantially all of the properties of the Borrower and
its Subsidiaries, taken as a whole (either in one transaction
or a series of related transactions), including Capital Stock
of such Subsidiaries, to any Person (other than the Borrower
or a Subsidiary);
(iii) during any consecutive two-year period,
individuals who at the beginning of such period constituted
the Board of Directors of the Borrower (together with any new
directors whose election by such Board of Directors or whose
nomination for election by the stockholders of the Borrower
was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of
such period or whose election or nomination for election was
previously approved) cease for any reason to constitute a
majority of the Board of Directors of the Borrower then in
office; or
(iv) the Borrower is liquidated or dissolved or
adopts a plan of liquidation or dissolution, other than in a
transaction that complies with Article Eight of the Indenture.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agents and on which the
conditions set forth in Section 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Collateral
Agent or any Lender is granted a Lien as security for all or any
portion of the Obligations under any Security Instrument.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to
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those applied in the preparation of the audited financial statements of
the Borrower referred to in Section 7.6(a).
"Consolidated Amendment" means the Consolidated Amendment to
Collateral Documents, substantially in the form of Exhibit K attached
hereto, to be executed and delivered by the parties thereto on or
before the Closing Date.
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) taxes on income,
(iv) amortization, (v) depreciation, (vi) any other non-cash charges,
net of non-cash credits, for such period, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis, and (vii) solely for the Four-Quarter Period ending on September
30, 1998, a one-time gain on the sale of securities in the amount of
$2,451,000.
"Consolidated Indebtedness" means the sum of (without
duplication) all Indebtedness for Money Borrowed of the Borrower and
its Subsidiaries, all determined on a consolidated basis.
"Consolidated Interest Coverage Ratio" means, with respect to
the Borrower and its Subsidiaries for any Four-Quarter Period ending on
the date of computation thereof, the ratio of (i) Consolidated EBITDA
for such period, to (ii) the cash portion of Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Swap Agreement) payable in
connection with the incurrence of Indebtedness to the extent included
in gross interest expense and (iii) the portion of any payments made in
connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness less
cash and cash equivalents in excess of $10,000,000, as determined in
accordance with GAAP (in each case, determined as at such date) to (ii)
Consolidated EBITDA (for the Four-Quarter Period ending on (or most
recently ended prior to) such date).
"Consolidated Net Income" means, with respect to the Borrower
and its Subsidiaries for any period, the net income (or net loss) for
such period as determined on a consolidated basis in accordance with
GAAP, adjusted to the extent included in calculating such net income or
loss by excluding (i) any net after-tax extraordinary gains or losses
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17
(less all fees and expenses relating thereto), (ii) any net after-tax
gains or losses (less all fees and expenses relating thereto)
attributable to asset dispositions other than (x) in the ordinary
course of business, and (y) as permitted in Section 9.6(b) hereof,
(iii) the portion of any net income (or loss) of any Person that is not
a Subsidiary, in which the Borrower has an ownership interest, or that
is accounted for by the equity method of accounting, except to the
extent of the amount of dividends or distributions actually paid to the
Borrower in cash, and (iv) the net income or loss of any Person
combined with the Borrower on a "pooling of interests" basis
attributable to any period prior to the date of computation.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, Consolidated Shareholders' Equity,
as determined on a consolidated basis in accordance with GAAP applied
on a Consistent Basis.
"Consolidated Shareholders' Equity" means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding any upward adjustment after the
Closing Date due to revaluation of assets): (i) the amount of issued
and outstanding share capital, plus (ii) the amount of additional
paid-in capital and retained earnings (or, in the case of a deficit,
minus the amount of such deficit), plus (iii) the amount of any foreign
currency translation adjustment (if positive, or, if negative, minus
the amount of such translation adjustment), minus (iv) the amount of
any treasury stock, all as determined in accordance with GAAP applied
on a Consistent Basis.
"Consolidated Tangible Assets" means, at any date of
determination, the total assets, less goodwill and other intangibles
(other than patents, trademarks, copyrights, licenses and other
intellectual property), shown on the balance sheet of the Borrower and
its Subsidiaries as of the most recent date for which such a balance
sheet is available, determined on a consolidated basis in accordance
with GAAP less all write-ups (other than write-ups in connection with
Acquisitions) subsequent to the Closing Date in the book value of any
asset (except any such intangible assets ) owned by the Borrower or any
of its Subsidiaries.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.8 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Sections 2.8 or Article III of one Type of Loan
into another Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and
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fair market value of other property (excluding property described in
clause (i) and the unpaid principal amount of any debt instrument)
given as consideration, (iii) the amount (determined by using the face
amount or the amount payable at maturity, whichever is greater) of any
Indebtedness incurred, assumed or acquired by the Borrower or any
Subsidiary in connection with such Acquisition, (iv) all additional
purchase price amounts in the form of earnouts and other contingent
obligations that should be recorded on the financial statements of the
Borrower and its Subsidiaries in accordance with GAAP, (v) all amounts
paid in respect of covenants not to compete, consulting agreements that
should be recorded on financial statements of the Borrower and its
Subsidiaries in accordance with GAAP, and other affiliated contracts in
connection with such Acquisition, (vi) the aggregate fair market value
of all other consideration given by the Borrower or any Subsidiary in
connection with such Acquisition, and (vii) out of pocket transaction
costs for the services and expenses of attorneys, accountants and other
consultants incurred in effecting such transaction, and other similar
transaction costs so incurred. For purposes of determining the Cost of
Acquisition for any transaction, (A) the capital stock of the Borrower
shall be valued (I) in the case of capital stock that is then
designated as a national market system security by the National
Association of Securities Dealers, Inc. ("NASDAQ") or is listed on a
national securities exchange, the average of the last reported bid and
ask quotations or the last prices reported thereon, and (II) with
respect to shares that are not freely tradeable, as determined by a
committee composed of the disinterested members of the Board of
Directors of the Borrower and, if requested by the Administrative
Agent, determined to be a reasonable valuation by the independent
public accountants referred to in Section 8.1(a), (B) the capital stock
of any Subsidiary shall be valued as determined by a committee composed
of the disinterested members of the Board of Directors of such
Subsidiary and, if requested by the Administrative Agent, determined to
be a reasonable valuation by the independent public accountants
referred to in Section 8.1(a), and (C) with respect to any Acquisition
accomplished pursuant to the exercise of options or warrants or the
conversion of securities, the Cost of Acquisition shall include both
the cost of acquiring such option, warrant or convertible security as
well as the cost of exercise or conversion.
"Credit Party" means, collectively, the Borrower, each
Guarantor and each other Person providing Collateral pursuant to any
Security Instrument.
"Debt Offering" means the incurrence of any Indebtedness for
Money Borrowed permitted hereunder in connection with a public offering
or private placement of debt securities of the Borrower or any
Subsidiary or otherwise, except to the extent permitted under Section
9.5.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar
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19
Rate applicable to such Loan, and thereafter at a rate of interest per
annum which shall be two percent (2%) above the Base Rate, (ii) with
respect to Floating Rate Loans and Reimbursement Obligations, at a rate
of interest per annum which shall be two percent (2%) above the Base
Rate and (iii) in any case, the maximum rate permitted by applicable
law, if lower.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means a Subsidiary which is organized
under the laws of one of the states or territories comprising the
United States of America.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Administrative Agent
and, unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with Section 12.1, the
Borrower, such approval not to be unreasonably withheld or delayed by
the Borrower or the Administrative Agent and such approval to be deemed
given by the Borrower within five Business Days after notice of such
proposed assignment has been provided by the assigning Lender to the
Borrower if the Borrower has not otherwise responded; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Administrative
Agent:
(a) Government Securities;
(b) obligations of any corporation organized
under the laws of any state of the United States of America or
under the laws of any other nation, payable in the United
States of America, expressed to mature not later than 180 days
following the date of issuance thereof and rated in an
investment grade rating category by S&P and Xxxxx'x;
(c) interest bearing demand or time deposits
issued by any Lender or certificates of deposit maturing
within one year from the date of issuance thereof and issued
by a bank or trust company organized under the laws of the
United States or of any state thereof having capital surplus
and undivided profits aggregating at least $400,000,000 and
being rated "A-" or better by S&P or "A-3" or better by
Xxxxx'x;
(d) Repurchase Agreements;
(e) Municipal Obligations;
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20
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P;
(h) tax-exempt or taxable adjustable rate
preferred stock issued by a Person having a rating of its long
term unsecured debt of "A-" or better by S&P or "A-3" or
better by Xxxxx'x; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Xxxxx'x.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (i) is maintained for
employees of the Borrower or any of its ERISA Affiliates or is assumed
by the Borrower or any of its ERISA Affiliates in connection with any
Acquisition or (ii) has at any time been maintained for the employees
of the Borrower or any current or former ERISA Affiliate.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"Equity Offering" means a public or private offering of equity
securities (including, without limitation, any security or investment
exchangeable, exercisable or convertible for or into, or otherwise
entitling the holder to receive, equity securities) of the Borrower or
any Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
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21
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
----------------------
Rate 1- Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Letters of Credit" means those Letters of Credit
issued by NationsBank and BOT and described on Schedule 1.1 attached
hereto.
"Facility Guaranty" means the AFI Guaranty and each Guaranty
Agreement between one or more Guarantors and the Administrative Agent
for the benefit of the Lenders, delivered as of the Closing Date and
otherwise pursuant to Section 8.19, as the same may be amended,
modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility by payment in full of all
Revolving Credit Outstandings and Letter of Credit Outstandings,
together with all accrued and unpaid interest thereon, except for such
issued and undrawn Letters of Credit as have been fully cash
collateralized in a manner consistent with the terms of Section
10.1(B), (b) all Swap Agreements shall have been terminated, expired or
cash collateralized, (c) all Revolving Credit Commitments and Letter of
Credit Commitments shall have terminated or expired and (d) the
Borrower shall have fully, finally and irrevocably paid and satisfied
in full all Obligations (other than Obligations consisting of
continuing indemnities and other contingent Obligations of the Borrower
or any Guarantor that may be owing to the Lenders pursuant to the Loan
Documents and expressly survive termination of this Agreement);
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
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22
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative
Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower and its Subsidiaries commencing on April 1 of each calendar
year and ending on March 31 of each calendar year.
"Floating Rate" means, for any day, the rate per annum equal
to either the Base Rate or the Adjusted Federal Funds Rate, as selected
by an Authorized Representative in a Borrowing Notice delivered to the
Administrative Agent pursuant to Section 2.13(a) with respect to a
Swing Line Loan; provided, however, in the event such Borrowing Notice
delivered to the Administrative Agent fails to designate the selection
of either the Base Rate or the Adjusted Federal Funds Rate, the rate
per annum for such Swing Line Loan shall be deemed to be the Base Rate.
"Floating Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Floating Rate.
"FLS" means FLS Holdings Inc., a Delaware corporation.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Foreign Subsidiary" means any Subsidiary organized under the
laws of any jurisdiction other than one of the states comprising the
United States of America, any territory thereof or the District of
Columbia.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
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23
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guaranties" means, with respect to any Person any obligation
(except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing any Indebtedness of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including
(without limitation) obligations incurred through an agreement,
contingent or otherwise, by such Person: (a) to purchase such
Indebtedness or any property or assets constituting security therefor;
(b) to advance or supply funds (i) for the purpose of payment of such
Indebtedness, or (ii) to maintain working capital or other balance
sheet condition or any income statement condition of the Primary
Obligor or otherwise to advance or make available funds for the
purchase or payment of such Indebtedness; (c) to lease property or to
purchase securitiies or other property or services primarily for the
purpose of assuring the owner of such Indebtedness of the ability of
the Primary Obligor to make payment of the Indebtedness; or (d)
otherwise to assure the owner of the Indebtedness of the Primary
Obligor against loss in respect thereof. For purposes of computing the
amount of any Guaranty, in connection with any computation of
Indebtedness, it shall be assumed that the Indebtedness that is the
subject of such Guaranty is, to the extent guaranteed under such
Guaranty, a direct obligation of the issuer of such Guaranty.
"Guarantors" means, at any date, the Subsidiaries who are
required to be parties to a Facility Guaranty at such date.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property or arising under Rate
Hedging Obligations, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed,
all liability of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Guaranties and other items which in accordance with GAAP is required to
be classified as a liability on a balance sheet; but excluding all
accounts payable in the ordinary course of business so long as payment
therefor is due within one year; provided that in no event shall the
term Indebtedness include surplus and retained earnings,
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24
lease obligations (other than pursuant to Capital Leases), reserves for
deferred income taxes and investment credits, other deferred credits or
reserves.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation Letters of Credit, all Capital
Leases and the deferred purchase price of any property or asset,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including conditional sales or
similar title retention agreements), other than trade payables incurred
in the ordinary course of business.
"Indenture" means the Indenture dated as of April 3, 1998 by
and among the Borrower, as issuer, the subsidiary guarantors named
therein and State Street Bank and Trust Company, as Trustee, with
regard to the issuance of the Senior Notes.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted and ending, at the Borrower's option, on the date one, two,
three or six months thereafter as notified to the Administrative Agent
by the Authorized Representative three (3) Business Days prior to the
beginning of such Interest Period; provided, that,
(i) if the Authorized Representative fails to
notify the Administrative Agent of the length of an Interest
Period three (3) Business Days prior to the first day of such
Interest Period, the Eurodollar Rate Loan for which such
Interest Period was to be determined shall be deemed to be a
Base Rate Loan as of the first day thereof;
(ii) if an Interest Period for a Eurodollar Rate
Loan would end on a day which is not a Business Day, such
Interest Period shall be extended to the next Business Day
(unless such extension would cause the applicable Interest
Period to
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end in the succeeding calendar month, in which case such
Interest Period shall end on the next preceding Business Day);
(iii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iv) no Interest Period shall extend past the
Stated Termination Date; and
(v) there shall not be more than six (6)
Interest Periods in effect on any day.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit E.
"Issuing Bank" means initially NationsBank as issuer of
Letters of Credit under Article III, and, with respect to the Existing
Letters of Credit, NationsBank and BOT.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Administrative Agent,
as amended, modified or supplemented from time to time.
"Letter of Credit" means (i) a standby or commercial letter of
credit issued by the Issuing Bank pursuant to Article III hereof for
the account of the Borrower in favor of a Person advancing credit or
securing an obligation on behalf of the Borrower and (ii) the Existing
Letters of Credit.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment.
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"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any borrowing pursuant to an Advance
under the Revolving Credit Facility, including the Swing Line Facility.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, the LC Account Agreement, the
Applications and Agreements for Letter of Credit, and all other
instruments and documents heretofore or hereafter executed or delivered
to or in favor of any Lender, the Agents, or either of them in
connection with the Loans made and transactions contemplated under this
Agreement, as the same may be amended, supplemented or replaced from
the time to time.
"Loan Parties" means the Borrower and the Guarantor(s).
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Borrower or any of its Subsidiaries, taken as a
whole, (ii) the ability of any Credit Party to pay or perform its
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Agents or any Lender under any Loan Document or the validity, legality
or enforceability thereof.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal
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27
corporation or other public body organized under the laws of any such
state which are rated in the highest investment rating category by both
S&P and Moody's.
"NationsBank" means NationsBank, National Association.
"Net Proceeds" (a) from any Equity Offering or Debt Offering
means cash payments received by the Borrower therefrom as and when
received, net of all legal, accounting, banking and underwriting fees
and expenses, commissions, discounts and other issuance expenses
incurred in connection therewith and all taxes required to be paid or
accrued as a consequence of such issuance; and (b) from any Asset
Disposition means cash payments received by the Borrower therefrom
(including any cash payments received pursuant to any note or other
debt security received in connection with any Asset Disposition) as and
when received, net of (i) all legal fees and expenses and other fees
and expenses paid to third parties and incurred in connection
therewith, (ii) all taxes required to be paid or accrued as a
consequence of such sale, (iii) all amounts applied to repayment of
Indebtedness (other than the Obligations) secured by a Lien on the
asset or property disposed and (iv) all amounts reinvested by the
Borrower or a Subsidiary substantially contemporaneously with such
disposition (or to be invested within 90 days) in replacement assets of
substantially equal or greater value and utility.
"NMS" means NationsBanc Xxxxxxxxxx Securities LLC and its
successors.
"Notes" means, collectively, the Revolving Notes of the
Borrower and the promissory note of the Borrower evidencing Swing Line
Loans, executed and delivered to NationsBank pursuant to Section
2.13(b) substantially in the form of Exhibit F-2.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender which arise under a Swap
Agreement, and (iv) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the
Lenders, the Agents or NMS hereunder, under any one or more of the
other Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or
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partnership action (including any required shareholder, member or
partner action), or other similar official action, as applicable, taken
by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings and Revolving Credit
Outstandings on such date.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than NationsBank) and a Swing Line Loan,
the extension of credit represented by the participation of such Lender
hereunder in the liability of NationsBank in respect of a Swing Line
Loan made by NationsBank in accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Stock Pledge Agreement dated as
of the date hereof between the Borrower and the Collateral Agent for
the benefit of the Collateral Agent and the Lenders, and (ii) any
additional Stock Pledge Agreement delivered to the Collateral Agent
pursuant to Section 8.19, as hereafter amended, supplemented or
replaced from time to time.
"Pledged Stock" has the meaning given to such term in the
Pledge Agreement.
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"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its customers.
"Principal Office" means the principal office of NationsBank,
presently located at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, XX0 000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services, or such
other office and address as the Administrative Agent may from time to
time designate.
"Rate Hedging Obligations" means any and all obligations of
the Borrower or any Subsidiary, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof or compliance by any
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Lender with any request or directive regarding capital adequacy,
including those relating to "highly leveraged transactions," whether or
not having the force of law, and whether or not failure to comply
therewith would be unlawful and whether or not published or proposed
prior to the date hereof.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 3.2) for amounts theretofore
paid by the Issuing Bank pursuant to a drawing under such Letter of
Credit.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, its
Revolving Credit Commitment, and (b) following the occurrence and
during the continuance of an Event of Default, to the sum of (i) the
amount of such Lender's Applicable Commitment Percentage plus (ii) the
aggregate principal amount of such Lender's Applicable Commitment
Percentage of Revolving Credit Outstandings plus (iii) the amount of
such Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings; provided that, for the purpose of this definition only,
(A) if any Lender shall have failed to fund its Applicable Commitment
Percentage of any Advance when required to fund hereunder, the
Revolving Credit Commitment of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall
continue and such Lender's Credit Exposure attributable to such failure
shall be deemed held by any Lender making more than its Applicable
Commitment Percentage of such Advance to the extent it covers such
failure, (B) if any Lender shall have failed to pay to the Issuing Bank
upon demand its Applicable Commitment Percentage of any drawing under
any Letter of Credit resulting in an outstanding Reimbursement
Obligation, such Lender's Credit Exposure attributable to such Letter
of Credit Outstandings shall be deemed to be held by Issuing Bank and
(C) if any Lender shall have failed to pay to NationsBank its
Applicable Commitment Percentage of any Swing Line Loan, such Lender's
Credit Exposure attributable to all Swing Line Outstandings shall be
deemed to be held by NationsBank for purposes of this definition;
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks
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of the Federal Reserve System against "Eurocurrency liabilities" (as
such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (i) any
category of liabilities which includes deposits by reference to which
the Eurodollar Rate is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Rate
Loans. The Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower) now or hereafter
outstanding, except a dividend payable solely in shares of a class of
stock to the holders of that class; (b) any redemption, conversion,
exchange, retirement or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock of
Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Borrower or any of its Subsidiaries now or hereafter
outstanding; and (d) any issuance and sale of capital stock of any
Subsidiary of the Borrower (or any option, warrant or right to acquire
such stock) other than to the Borrower.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrower by the Lenders in
the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 10.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Article II.
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"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in Section 2.4 substantially in the form of Exhibit
F-1, with appropriate insertions as to amounts, dates and names of
Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx.
"Security Agreement" means (i) the Security Agreement dated
June 9, 1995, as amended by the Security Agreement Amendment by the
Borrower to the Collateral Agent, as hereafter modified, amended or
supplemented from time to time and (ii) any Security Agreement of any
Subsidiary required to be delivered pursuant to Section 8.19.
"Security Agreement Amendment" means the Amendment to Security
Agreement, substantially in the form of Exhibit L attached hereto, to
be executed and delivered by the parties thereto on or before the
Closing Date.
"Security Instruments" means, collectively, the Pledge
Agreement, the Security Agreement, the AFI Security Agreement and all
other agreements, instruments and other documents, whether now existing
or hereafter in effect, pursuant to which the Borrower or any
Subsidiary shall grant or convey to the Collateral Agent or the Lenders
a Lien in property as security for all or any portion of the
Obligations, as any of them may be amended, modified or supplemented
from time to time.
"Senior Note" has the meaning set forth in the preamble to
this Agreement.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which the Borrower or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA
and which is not a Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Guaranties; and
(ii) it is then able and expects to be able to
pay its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Stated Termination Date" means July 13, 2003.
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"Subordinated Intercompany Note" means the subordinated note
due December 21, 2002 in the original principal amount of $50,000,000
issued by the Borrower to FLS, with an outstanding principal balance as
of the Closing Date of $20,000,000.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower and/or
by one or more of the Borrower's Subsidiaries.
"Swap Agreement" means one or more agreements between the
Borrower and any Lender, or an affiliate of a Lender with respect to
Indebtedness evidenced by any or all of the Notes, which agreements
create Rate Hedging Obligations.
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 2.13.
"Swing Line Facility" means the facility described in Section
2.13 hereof providing for Swing Line Loans to the Borrower by
NationsBank.
"Swing Line Loans" means loans made by NationsBank to the
Borrower pursuant to Section 2.13.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA.
"Total Letter of Credit Commitment" means an amount not to
exceed $50,000,000.
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"Total Revolving Credit Commitment" means a principal amount
equal to $150,000,000, as reduced from time to time in accordance with
Section 2.7.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Voting Stock" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to the Borrower's or any of its
Subsidiaries' business and operations will on a timely basis be able to
perform properly data-sensitive functions involving all dates on and
after January 1, 2000.
"Year 2000 Problem" means the risk that computer applications
used by the Borrower and any of its Subsidiaries (including those
affected by information received from its suppliers and vendors) may be
unable to recognize and perform properly data-sensitive functions
involving certain dates on and after January 1, 2000.
1.3. Rules of Interpretation.
(a) All accounting terms not specifically defined herein
shall have the meanings assigned to such terms and shall be interpreted
in accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the Florida
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references
herein to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
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(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words
such as "hereunder", "hereto", "hereof" and "herein" and other words of
like import shall, unless the context clearly indicates to the
contrary, refer to the whole of the applicable document and not to any
particular article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without
limiting the generality of any description preceding such term, and for
purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement, followed by or referable to an enumeration
of specific matters, to matters similar to those specifically
mentioned.
(h) All dates and times of day specified herein shall
refer to such dates and times at Charlotte, North Carolina.
(i) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(j) Any reference to an officer of the Borrower or any
other Person by reference to the title of such officer shall be deemed
to refer to each other officer of such Person, however titled,
exercising the same or substantially similar functions.
(k) All references to any agreement or document as
amended, modified or supplemented, or words of similar effect, shall
mean such document or agreement, as the case may be, as amended,
modified or supplemented from time to time only as and to the extent
permitted therein and in the Loan Documents.
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ARTICLE II
The Revolving Credit Facility
2.1. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make Advances to the Borrower
under the Revolving Credit Facility from time to time from the Closing Date
until the Revolving Credit Termination Date on a pro rata basis as to the total
borrowing requested by the Borrower on any day determined by such Lender's
Applicable Commitment Percentage up to but not exceeding the Revolving Credit
Commitment of such Lender, provided, however, that the Lenders will not be
required and shall have no obligation to make any such Advance (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if the
Administrative Agent has accelerated the maturity of any of the Notes as a
result of an Event of Default; provided further, however, that immediately after
giving effect to each such Advance, the amount of Revolving Credit Outstandings
plus Letter of Credit Outstandings plus Swing Line Outstandings shall not exceed
the Total Revolving Credit Commitment. Within such limits, the Borrower may
borrow, repay and reborrow under the Revolving Credit Facility on a Business Day
from the Closing Date until, but (as to borrowings and reborrowings) not
including, the Revolving Credit Termination Date; provided, however, that (y) no
Revolving Loan that is a Eurodollar Rate Loan shall be made which has an
Interest Period that extends beyond the Stated Termination Date and (z) each
Revolving Loan that is a Eurodollar Rate Loan may, subject to the provisions of
Section 2.7, be repaid only on the last day of the Interest Period with respect
thereto unless such payment is accompanied by the additional payment, if any,
required by Section 5.5.
(b) Amounts. Except as otherwise permitted by all the
Lenders from time to time, the amount of Revolving Credit Outstandings plus
Letter of Credit Outstandings plus Swing Line Outstandings shall not exceed at
any time the Total Revolving Credit Commitment, and, in the event there shall be
outstanding any such excess, the Borrower shall immediately make such payments
and prepayments as shall be necessary to comply with this restriction. Each
Revolving Loan hereunder, other than Base Rate Refunding Loans, and each
Conversion under Section 2.8, shall be in an amount of at least $2,000,000, and,
if greater than $2,000,000, an integral multiple of $500,000.
(c) Advances. (i) An Authorized Representative shall give
the Administrative Agent (1) at least three (3) Business Days' irrevocable
written notice by telefacsimile transmission of a Borrowing Notice or Interest
Rate Selection Notice (as applicable) with appropriate insertions, effective
upon receipt, of each Revolving Loan that is a Eurodollar Rate Loan (whether
representing an additional borrowing hereunder or the Conversion of a borrowing
hereunder from Base Rate Loans to Eurodollar Rate Loans) prior to 1:00 P.M. and
(2) irrevocable written notice by telefacsimile transmission of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions, effective upon receipt, of each Revolving Loan (other than
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Base Rate Refunding Loans to the extent the same are effected without notice
pursuant to Section 2.1(c)(iv)) that is a Base Rate Loan (whether representing
an additional borrowing hereunder or the Conversion of borrowing hereunder from
Eurodollar Rate Loans to Base Rate Loans) prior to 11:00 A.M. on the day of such
proposed Revolving Loan. Each such notice shall specify the amount of the
borrowing, the type of Revolving Loan (Base Rate or Eurodollar Rate), the date
of borrowing and, if a Eurodollar Rate Loan, the Interest Period to be used in
the computation of interest. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, together with the amount of
each Lender's portion of an Advance requested thereunder, shall be provided by
the Administrative Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Administrative Agent shall have
received such notice by 1:00 P.M. in the case of a Eurodollar Rate Loan and
11:00 A.M. in the case of a Base Rate Loan) not later than 3:00 P.M. in the case
of a Eurodollar Rate Loan and not later than 1:00 P.M. in the case of a Base
Rate Loan on the same day as the Administrative Agent's receipt of such notice.
(ii) Not later than 3:00 P.M. on the date specified for each
borrowing under this Section 2.1, each Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, make the amount of the Advance or
Advances to be made by it on such day available by wire transfer to the
Administrative Agent in the amount of its pro rata share, determined according
to such Lender's Applicable Commitment Percentage of the Revolving Loan or
Revolving Loans to be made on such day. Such wire transfer shall be directed to
the Administrative Agent at the Principal Office and shall be in the form of
Dollars constituting immediately available funds. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on the borrowing date by delivery
of the proceeds thereof to the Borrower's Account or otherwise as shall be
directed in the applicable Borrowing Notice by the Authorized Representative and
reasonably acceptable to the Administrative Agent.
(iii) The Borrower shall have the option to elect the duration of
the initial and any subsequent Interest Periods and to Convert the Revolving
Loans in accordance with Section 2.8. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time, provided, however, there shall not be
outstanding at any one time Eurodollar Rate Loans having more than six (6)
different Interest Periods. If the Administrative Agent does not receive a
Borrowing Notice or an Interest Rate Selection Notice giving notice of election
of the duration of an Interest Period or of Conversion of any Loan to or
Continuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
Section 2.1(c) or 2.8, the Borrower shall be deemed to have elected to Convert
such Loan to (or Continue such Loan as) a Base Rate Loan until the Borrower
notifies the Administrative Agent in accordance with Section 2.8.
(iv) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Issuing Bank prior to the
Stated Termination Date, and the Borrower shall not immediately fully reimburse
the Issuing Bank in respect of such drawing, (A) provided that the conditions to
making a Revolving Loan as herein provided shall then be satisfied, the
Reimbursement Obligation arising from such drawing shall be paid to the Issuing
Bank by the
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Administrative Agent without the requirement of notice to or from the Borrower
from immediately available funds which shall be advanced as a Base Rate
Refunding Loan by each Lender under the Revolving Credit Facility in an amount
equal to such Lender's Applicable Commitment Percentage of such Reimbursement
Obligation, and (B) if the conditions to making a Revolving Loan as herein
provided shall not then be satisfied, each of the Lenders shall fund by payment
to the Administrative Agent (for the benefit of the Issuing Bank) in immediately
available funds the purchase from the Issuing Bank of their respective
Participations in the related Reimbursement Obligation based on their respective
Applicable Commitment Percentages of the Total Letter of Credit Commitment. If a
drawing is presented under any Letter of Credit in accordance with the terms
thereof and the Borrower shall not immediately reimburse the Issuing Bank in
respect thereof, then notice of such drawing or payment shall be provided
promptly by the Issuing Bank to the Administrative Agent and the Administrative
Agent shall provide notice to each Lender by telephone or telefacsimile
transmission. If notice to the Lenders of a drawing under any Letter of Credit
is given by the Administrative Agent at or before 12:00 noon on any Business
Day, each Lender shall, pursuant to the conditions specified in this Section
2.1(c)(iv), either make a Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender's Applicable Commitment Percentage of
such drawing or payment and shall pay such amount to the Administrative Agent
for the account of the Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 2:30 P.M. on the same Business Day. If notice
to the Lenders of a drawing under a Letter of Credit is given by the
Administrative Agent after 12:00 noon on any Business Day, each Lender shall,
pursuant to the conditions specified in this Section 2.1(c)(iv), either make a
Base Rate Refunding Loan or fund the purchase of its Participation in the amount
of such Lender's Applicable Commitment Percentage of such drawing or payment and
shall pay such amount to the Administrative Agent for the account of the Issuing
Bank at the Principal Office in Dollars and in immediately available funds
before 12:00 noon on the next following Business Day. Any such Base Rate
Refunding Loan shall be advanced as, and shall Continue as, a Base Rate Loan
unless and until the Borrower Converts such Base Rate Loan in accordance with
the terms of Section 2.8.
2.2. Payment of Interest. (a) The Borrower shall pay interest to
the Administrative Agent for the account of each Lender on the outstanding and
unpaid principal amount of each Revolving Loan made by such Lender for the
period commencing on the date of such Revolving Loan until such Revolving Loan
shall be due at the then applicable Base Rate for Base Rate Loans or applicable
Eurodollar Rate for Eurodollar Rate Loans, as designated by the Authorized
Representative pursuant to Section 2.1; provided, however, that if any Event of
Default shall occur and be continuing, all amounts outstanding hereunder shall
bear interest thereafter at the Default Rate.
(b) Interest on each Revolving Loan shall be computed on
the basis of a year of 360 days and calculated in each case for the actual
number of days elapsed. Interest on each Revolving Loan shall be paid (i)
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing September 30, 1998 for each Floating Rate Loan, (ii) on the
last day of the applicable Interest Period for each Eurodollar Rate Loan and, if
such Interest Period extends for more than three (3) months, at intervals of
three (3) months after the
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first day of such Interest Period, and (iii) upon payment in full of the
principal amount of such Revolving Loan.
2.3. (a) Payment of Principal. The principal amount of each
Revolving Loan shall be due and payable to the Administrative Agent for the
benefit of each Lender in full on the Revolving Credit Termination Date, or
earlier as specifically provided herein. The principal amount of any Base Rate
Loan may be prepaid in whole or in part at any time. The principal amount of any
Eurodollar Rate Loan may be prepaid only at the end of the applicable Interest
Period unless the Borrower shall pay to the Administrative Agent for the account
of the Lenders the additional amount, if any, required under Section 5.5. All
prepayments of Revolving Loans made by the Borrower shall be in the amount of
$1,000,000 or such greater amount which is an integral multiple of $100,000, or
the amount equal to all Revolving Credit Outstandings, or such other amount as
necessary to comply with Section 2.1(b) or Section 2.8.
(b) Mandatory Prepayments. The Borrower shall make the
following required prepayments, each such payment to be made to the
Administrative Agent for the benefit of the Lenders within the time period
specified below:
(i) Debt Offerings. The Borrower shall make, or shall
cause each applicable Subsidiary to make, a prepayment from
the Net Proceeds of any Debt Offering in an amount equal to
one hundred percent (100%) of such Net Proceeds. Each such
prepayment shall be made within five (5) Business Days of
receipt of such Net Proceeds and upon not less than three (3)
Business' Days written notice to the Administrative Agent, and
shall include within one (1) Business Day of repayment a
certificate of an Authorized Representative setting forth in
reasonable detail the calculations utilized in computing the
amount of the Net Proceeds.
(ii) Asset Dispositions. The Borrower shall make, or shall
cause each applicable Subsidiary to make, a prepayment from
the Net Proceeds of any Asset Disposition in an amount equal
to one hundred percent (100%) of such Net Proceeds. Each such
prepayment shall be made within five (5) Business Days of
receipt of such Net Proceeds and upon not less than three (3)
Business' Days written notice to the Administrative Agent,
which notice shall include a certificate of Authorized
Representative setting forth in reasonable detail the
calculations utilized in computing the amount of the Net
Proceeds.
All mandatory prepayments made pursuant to this Section 2.3(b) shall
permanently reduce the Total Revolving Credit Commitment. Any prepayment of an
Eurodollar Rate Loan pursuant to this Section 2.3(b) other than on the last day
of an Interest Period shall be accompanied by the additional payment, if any,
required by Section 5.5 hereof.
2.4. Manner of Payment. (a) Each payment of principal (including
any prepayment) and payment of interest and fees, and any other amount required
to be paid to the Lenders with respect to the Revolving Loans, shall be made to
the Administrative Agent at the Principal Office,
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for the account of each Lender, in Dollars and in immediately available funds
without setoff, deduction or counterclaim before 3:00 P.M. on the date such
payment is due. The Administrative Agent may, but shall not be obligated to,
debit the amount of any such payment which is not made by such time to any
ordinary deposit account, if any, of the Borrower with the Administrative Agent.
(b) The Administrative Agent shall deem any payment made by or on
behalf of the Borrower hereunder that is not made both in Dollars and in
immediately available funds and prior to 3:00 P.M. to be a non-conforming
payment. Any such payment shall not be deemed to be received by the
Administrative Agent until the later of (i) the time such funds become available
funds and (ii) the next Business Day. Any non-conforming payment may constitute
or become a Default or Event of Default. Interest shall continue to accrue on
any principal as to which a non-conforming payment is made until the later of
(x) the date such funds become available funds or (y) the next Business Day at
the Default Rate from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the Revolving
Notes becomes due and payable on a day other than a Business Day, then such due
date shall be extended to the next succeeding Business Day unless provided
otherwise under clause (ii) of the definition of "Interest Period"; provided
that interest shall continue to accrue during the period of any such extension
and provided further, that in no event shall any such due date be extended
beyond the Revolving Credit Termination Date.
2.5. Revolving Notes. Revolving Loans made by each Lender shall be
evidenced by the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Revolving
Credit Commitment, which Revolving Note shall be dated the Closing Date or a
later date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
2.6. Pro Rata Payments. Except as otherwise provided herein, (a)
each payment on account of the principal of and interest on the Revolving Loans
and the fees described in Section 2.10 shall be made to the Administrative Agent
for the account of the Lenders pro rata based on their Applicable Commitment
Percentages, (b) all payments to be made by the Borrower for the account of each
of the Lenders on account of principal, interest and fees, shall be made without
diminution, setoff, recoupment or counterclaim, and (c) the Administrative Agent
will promptly distribute to the Lenders in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.
2.7. Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Administrative Agent, effective upon receipt, to reduce the Total
Revolving Credit Commitment. The Administrative Agent shall give each Lender,
within one (1) Business Day of receipt of such notice, telefacsimile notice, or
telephonic notice (confirmed in writing), of such reduction. Each such reduction
shall be in the aggregate amount of $5,000,000 or such greater amount which is
in an integral multiple of
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$500,000, or the entire remaining Total Revolving Credit Commitment, and shall
permanently reduce the Total Revolving Credit Commitment. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of the
Revolving Loans to the extent that the principal amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line Outstandings
exceeds the Total Revolving Credit Commitment after giving effect to such
reduction, together with accrued and unpaid interest on the amounts prepaid. No
such reduction shall result in the payment of any Eurodollar Rate Loan other
than on the last day of the Interest Period of such Eurodollar Rate Loan unless
such prepayment is accompanied by amounts due, if any, under Section 5.5.
2.8. Conversions and Elections of Subsequent Interest Periods.
Subject to the limitations set forth below and in Article III, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Administrative Agent on or
before 11:00 A.M. on any Business Day, Convert all or a part of Eurodollar Rate
Loans under the Revolving Credit Facility to Base Rate Loans on the last day of
the Interest Period for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall
have occurred and be continuing upon delivery, effective upon receipt, of a
properly completed Interest Rate Selection Notice to the Administrative Agent on
or before 2:00 P.M. three (3) Business Days' prior to the date of such election
or Conversion:
(i) elect a subsequent Interest Period for all
or a portion of Eurodollar Rate Loans under the Revolving
Credit Facility to begin on the last day of the then current
Interest Period for such Eurodollar Rate Loans; and
(ii) Convert Base Rate Loans under the Revolving
Credit Facility to Eurodollar Rate Loans on any Business Day.
Each election and Conversion pursuant to this Section 2.8 shall be
subject to the limitations on Eurodollar Rate Loans set forth in the definition
of "Interest Period" herein and in Sections 2.1, 2.3 and Article III. The
Administrative Agent shall give written notice to each Lender of such notice of
election or Conversion prior to 3:00 P.M. on the day such notice of election or
Conversion is received. All such Continuations or Conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
2.9. Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower as Advances
shall be reduced by the aggregate amount of Revolving Credit Outstandings,
Letters of Credit Outstandings and Swing Line Outstandings.
2.10. Unused Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Administrative Agent, for
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the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, an unused fee equal to the Applicable Unused Fee multiplied by the
average daily amount by which the Total Revolving Credit Commitment exceeds the
sum of (i) Revolving Credit Outstandings (without giving effect to Swing Line
Outstandings except in the case of NationsBank) plus (ii) Letter of Credit
Outstandings. Such fees shall be due in arrears on the last Business Day of each
March, June, September and December commencing September 30, 1998 to and on the
Revolving Credit Termination Date. Notwithstanding the foregoing, so long as any
Lender fails to make available any portion of its Revolving Credit Commitment
when requested, such Lender shall not be entitled to receive payment of its pro
rata share of such fee until such Lender shall make available such portion. Such
fee shall be calculated on the basis of a year of 360 days for the actual number
of days elapsed.
2.11. Deficiency Advances; Failure to Purchase Participations. No
Lender shall be responsible for any default of any other Lender in respect to
such other Lender's obligation to make any Loan hereunder or fund its purchase
of any Participation hereunder nor shall the Revolving Credit Commitment of any
Lender hereunder be increased as a result of such default of any other Lender.
Without limiting the generality of the foregoing, in the event any Lender shall
fail to advance funds to the Borrower as herein provided, the Administrative
Agent may in its discretion, but shall not be obligated to, advance under the
applicable Note in its favor as a Lender all or any portion of such amount or
amounts (each, a "deficiency advance") and shall thereafter be entitled to
payments of principal of and interest on such deficiency advance in the same
manner and at the same interest rate or rates to which such other Lender would
have been entitled had it made such Advance under its Note; provided that, (i)
such defaulting Lender shall not be entitled to receive payments of principal,
interest or fees with respect to such deficiency advance until such deficiency
advance shall be paid by such Lender and (ii) upon payment to the Administrative
Agent from such other Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the
most recent date or dates interest was paid to the Administrative Agent by a
Borrower on each Loan comprising the deficiency advance at the interest rate per
annum for overnight borrowing by the Administrative Agent from the Federal
Reserve Bank, then such payment shall be credited against the applicable Note of
the Administrative Agent in full payment of such deficiency advance and such
Borrower shall be deemed to have borrowed the amount of such deficiency advance
from such other Lender as of the most recent date or dates, as the case may be,
upon which any payments of interest were made by such Borrower thereon. In the
event any Lender shall fail to fund its purchase of a Participation after notice
from the Issuing Bank or NationsBank, as the Swing Line lender, as applicable,
such Lender shall pay to the Issuing Bank or NationsBank, as the Swing Line
lender, as applicable, interest on the amount so due from the date of such
notice at the interest rate per annum for overnight borrowing by the
Administrative Agent from the Federal Reserve Bank to the date such purchase
price is received by the Issuing Bank or NationsBank, as the Swing Line lender,
as applicable.
2.12. Use of Proceeds. The proceeds of the Loans made pursuant to
the Revolving Credit Facility hereunder shall be used by the Borrower for
general working capital needs and other corporate purposes.
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2.13. Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the
Administrative Agent and the Lenders, NationsBank shall make available Swing
Line Loans to the Borrower prior to the Revolving Credit Termination Date.
NationsBank shall not be obligated to make any Swing Line Loan pursuant hereto
(i) if to the actual knowledge of NationsBank the Borrower is not in compliance
with all the conditions to the making of Revolving Loans set forth in this
Agreement, (ii) if after giving effect to such Swing Line Loan, the Swing Line
Outstandings exceed $15,000,000, or (iii) if after giving effect to such Swing
Line Loan, the sum of the Swing Line Outstandings, Revolving Credit Outstandings
and Letter of Credit Outstandings exceeds the Total Revolving Credit Commitment.
The Company may borrow, repay and reborrow under this Section 2.13. Unless
notified to the contrary by NationsBank, borrowings under the Swing Line shall
be made in the minimum amount of $100,000 or, if greater, in amounts which are
integral multiples of $10,000, or in the amount necessary to effect a Base Rate
Refunding Loan, upon written request by telefacsimile transmission, effective
upon receipt, by an Authorized Representative of the Borrower made to
NationsBank not later than 3:00 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the borrowing,
the date of borrowing, and the election of either the Base Rate or the Adjusted
Federal Funds Rate with respect to such borrowing, and shall be in the form of
Exhibit D-2, with appropriate insertions. Unless notified to the contrary by
NationsBank, each repayment of a Swing Line Loan shall be in an amount which is
an integral multiple of $10,000 or the aggregate amount of all Swing Line
Outstandings. If the Borrower instructs NationsBank to debit any demand deposit
account of the Borrower in the amount of any payment with respect to a Swing
Line Loan, or NationsBank otherwise receives repayment, after 3:00 P.M. on a
Business Day, such payment shall be deemed received on the next Business Day.
(b) Swing Line Loans shall bear interest, at the Borrower's
option, at either (i) the Base Rate, or (ii) the Adjusted Federal Funds Rate;
provided, however, that if the Borrowing Notice received by the Administrative
Agent with respect to a Swing Line Loan fails to designate either the Base Rate
or the Adjusted Federal Funds Rate for such Swing Line Loan, such Swing Line
Loan shall bear interest at the Base Rate. The interest payable on Swing Line
Loans is solely for the account of NationsBank, and all accrued and unpaid
interest on Swing Line Loans shall be payable on the dates and in the manner
provided in Sections 2.2(b) and 2.4 with respect to interest on Base Rate Loans.
The Swing Line Outstandings shall be evidenced by a Note delivered to
NationsBank pursuant to this Section 2.13(b) on the Closing Date in the original
principal amount of $15,000,000 and substantially in the form of Exhibit F-2.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from NationsBank a Participation therein in an amount
equal to that Lender's Applicable Commitment Percentage of such Swing Line Loan.
Upon demand made by NationsBank, each Lender shall, according to its Applicable
Commitment Percentage of such Swing Line Loan, promptly provide to NationsBank
its purchase price therefor in an amount equal to its Participation therein. Any
Advance made by a Lender pursuant to demand of NationsBank of the purchase price
of its Participation shall be deemed (i) provided that the conditions to making
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Revolving Loans shall be satisfied, a Base Rate Refunding Loan under Section 2.1
until the Borrower Converts such Base Rate Loan in accordance with the terms of
Section 2.8, and (ii) in all other cases, the funding by each Lender of the
purchase price of its Participation in such Swing Line Loan. The obligation of
each Lender to so provide its purchase price to NationsBank shall be absolute
and unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Administrative Agent shall provide
from the proceeds of such Advance to NationsBank the amount necessary to repay
such Swing Line Outstandings (which NationsBank shall then apply to such
repayment) and credit any balance of the Advance in immediately available funds
in the manner directed by the Borrower pursuant to Section 2.1(c)(ii). The
proceeds of such Advances shall be paid to NationsBank for application to the
Swing Line Outstandings and the Lenders shall then be deemed to have made Loans
in the amount of such Advances. The Swing Line shall continue in effect until
the Revolving Credit Termination Date, at which time all Swing Line Outstandings
and accrued interest thereon shall be due and payable in full.
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ARTICLE III
Letters of Credit
3.1. Letters of Credit. The Issuing Bank agrees, subject to the
terms and conditions of this Agreement, upon request of the Borrower to issue
from time to time for the account of the Borrower Letters of Credit upon
delivery to the Issuing Bank of an Application and Agreement for Letter of
Credit relating thereto in form and content acceptable to the Issuing Bank;
provided, that (i) the Letter of Credit Outstandings shall not exceed the Total
Letter of Credit Commitment and (ii) no Letter of Credit shall be issued if,
after giving effect thereto, Letter of Credit Outstandings plus Revolving Credit
Outstandings plus Swing Line Outstandings shall exceed the Total Revolving
Credit Commitment. No Letter of Credit shall have an expiry date (including all
rights of the Borrower or any beneficiary named in such Letter of Credit to
require renewal) or payment date occurring later than the earlier to occur of
one year after the date of its issuance or the fifth Business Day prior to the
Stated Termination Date.
3.2. Reimbursement.
(a) The Borrower hereby unconditionally agrees to pay to
the Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the Letters of
Credit and all reasonable expenses incurred by the Issuing Bank in connection
with the Letters of Credit, and in any event and without demand to place in
possession of the Issuing Bank (which shall include Advances under the Revolving
Credit Facility if permitted by Section 2.1 and Swing Line Loans if permitted by
Section 2.13) sufficient funds to pay all debts and liabilities arising under
any Letter of Credit. The Issuing Bank agrees to give the Borrower prompt notice
of any request for a draw under a Letter of Credit. The Issuing Bank may charge
any account the Borrower may have with it for any and all amounts the Issuing
Bank pays under a Letter of Credit, plus charges and reasonable expenses as from
time to time agreed to by the Issuing Bank and the Borrower; provided that to
the extent permitted by Section 2.1(c)(iv) and Section 2.13, amounts shall be
paid pursuant to Advances under the Revolving Credit Facility or, if the
Borrower shall elect, by Swing Line Loans. The Borrower agrees to pay the
Issuing Bank interest on any Reimbursement Obligations not paid when due
hereunder at the Default Rate, such rate to be calculated on the basis of a year
of 360 days for actual days elapsed.
(b) In accordance with the provisions of Section 2.1(c),
the Issuing Bank shall notify the Administrative Agent of any drawing under any
Letter of Credit promptly following the receipt by the Issuing Bank of such
drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation in the
liability of the Issuing Bank in respect of each Letter of Credit in an amount
equal to such Lender's Applicable Commitment Percentage of such liability, and
to the extent that the Borrower is obligated to pay the Issuing Bank under
Section 3.2(a), each Lender (other than the Issuing Bank) thereby shall
absolutely, unconditionally and
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irrevocably assume, and shall be unconditionally obligated to pay to the Issuing
Bank as hereinafter described, its Applicable Commitment Percentage of the
liability of the Issuing Bank under such Letter of Credit.
(i) Each Lender (including the Issuing Bank in
its capacity as a Lender) shall, subject to the terms and
conditions of Article II, pay to the Administrative Agent for
the account of the Issuing Bank at the Principal Office in
Dollars and in immediately available funds, an amount equal to
its Applicable Commitment Percentage of any drawing under a
Letter of Credit, such funds to be provided in the manner
described in Section 2.1(c)(iv).
(ii) Simultaneously with the making of each
payment by a Lender to the Issuing Bank pursuant to Section
2.1(c)(iv)(B), such Lender shall, automatically and without
any further action on the part of the Issuing Bank or such
Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the
related Reimbursement Obligation of the Borrower. The
Reimbursement Obligations of the Borrower shall be immediately
due and payable whether by Advances made in accordance with
Section 2.1(c)(iv), Swing Line Loans made in accordance with
Section 2.13, or otherwise.
(iii) Each Lender's obligation to make payment to
the Administrative Agent for the account of the Issuing Bank
pursuant to Section 2.1(c)(iv) and this Section 3.2(c), and
the right of the Issuing Bank to receive the same, shall be
absolute and unconditional, shall not be affected by any
circumstance whatsoever and shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Lender
is obligated to pay but does not pay amounts to the
Administrative Agent for the account of the Issuing Bank in
full upon such request as required by Section 2.1(c)(iv) or
this Section 3.2(c), such Lender shall, on demand, pay to the
Administrative Agent for the account of the Issuing Bank
interest on the unpaid amount for each day during the period
commencing on the date of notice given to such Lender pursuant
to Section 2.1(c) until such Lender pays such amount to the
Administrative Agent for the account of the Issuing Bank in
full at the interest rate per annum for overnight borrowing by
the Administrative Agent from the Federal Reserve Bank.
(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth in
clause (ii) above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by Issuing Bank
from the Borrower, Issuing Bank shall promptly pay to each
Lender an amount equal to its Applicable Commitment Percentage
of such payment from the Borrower.
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(d) Promptly following the end of each calendar quarter,
the Issuing Bank shall deliver to the Administrative Agent a notice describing
the aggregate undrawn amount of all Letters of Credit at the end of such
quarter. Upon the request of any Lender from time to time, the Issuing Bank
shall deliver to the Administrative Agent, and the Administrative Agent shall
deliver to such Lender, any other information reasonably requested by such
Lender with respect to each Letter of Credit outstanding.
(e) The issuance by the Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set forth in Article VI,
be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to the Issuing Bank
consistent with the then current practices and procedures of the Issuing Bank
with respect to similar letters of credit, and the Borrower shall have executed
and delivered such other instruments and agreements relating to such Letters of
Credit as the Issuing Bank shall have reasonably requested consistent with such
practices and procedures and shall not be in conflict with any of the express
terms herein contained. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) The Borrower agrees that Issuing Bank may, in its
sole discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be signed or
issued by an administrator, executor, trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, liquidator, receiver,
attorney in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other documents.
(g) Without limiting the generality of the provisions of
Section 12.9, the Borrower hereby agrees to indemnify and hold harmless the
Issuing Bank, each other Lender and the Administrative Agent from and against
any and all claims and damages, losses, liabilities, reasonable costs and
expenses which the Issuing Bank, such other Lender or the Administrative Agent
may incur (or which may be claimed against the Issuing Bank, such other Lender
or the Administrative Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any Letter of
Credit; provided that the Borrower shall not be required to indemnify the
Issuing Bank, any other Lender or the Administrative Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, (i) caused by the willful misconduct or gross negligence of the party to
be indemnified or (ii) caused by the failure of the Issuing Bank to pay under
any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this Section 3.2(g) shall
survive repayment of the Obligations, occurrence of the Revolving Credit
Termination Date and expiration or termination of this Agreement.
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(h) Without limiting Borrower's rights as set forth in
Section 3.2(g), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing Bank's
right to receive such payment shall be absolute, unconditional and irrevocable,
and that such obligations of the Borrower shall be performed strictly in
accordance with the terms of this Agreement and such Letters of Credit and the
related Applications and Agreement for any Letter of Credit, under all
circumstances whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of
the Letter of Credit, the obligation supported by the Letter
of Credit or any other agreement or instrument relating
thereto (collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to
or departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person, whether
in connection with the Loan Documents, the Related LC
Documents or any unrelated transaction;
(iv) any breach of contract or other dispute
between the Borrower and any beneficiary or any transferee of
a Letter of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Administrative Agent, with or without notice
to or approval by the Borrower in respect of any of Borrower's
Obligations under this Agreement; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
3.3. Letter of Credit Facility Fees. The Borrower shall pay to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a fee on the aggregate amount available to be
drawn on each outstanding Letter of Credit at a rate equal
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to the Applicable Margin for Eurodollar Rate Loans, and (ii) for the Issuing
Bank, 0.125% based on the aggregate amount available to be drawn on each
outstanding Letter of Credit. Such fees shall be due with respect to each Letter
of Credit quarterly in arrears on the last day of each March, June, September,
and December, the first such payment to be made on the first such date occurring
after the date of issuance of a Letter of Credit. The fees described in this
Section 3.3 shall be calculated on the basis of a year of 360 days for the
actual number of days elapsed.
3.4. Administrative Fees. The Borrower shall pay to the Issuing
Bank such administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as the Issuing Bank and the
Borrower shall agree from time to time.
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ARTICLE IV
Security
4.1. Security. As security for the full and timely payment and
performance of all Obligations, the Credit Parties shall on or before the
Closing Date do or cause to be done all things necessary in the opinion of the
Administrative Agent and its counsel to grant to the Collateral Agent for the
benefit of the Lenders a duly perfected first priority security interest in all
Collateral subject to no prior Lien or other encumbrance or restriction on
transfer.
4.2. Guaranty. The Borrower shall cause AFI to amend and restate
the AFI Guaranty pursuant to the Consolidated Amendment to be delivered by AFI
on or before the Closing Date. The Borrower hereby agrees to cause a Facility
Guaranty to be delivered by any Domestic Subsidiary acquired or created after
the Closing Date pursuant to the terms of Section 8.19 hereof.
4.3. Stock Pledge. As security for the full and timely payment and
performance of (i) all Obligations now existing or hereafter arising and (ii) if
applicable, its obligations as a Guarantor under the Facility Guaranty, the
Borrower and each Subsidiary owning any Pledged Stock shall on or before the
Closing Date deliver to the Collateral Agent a Pledge Agreement together with
certificates representing Pledged Stock with stock powers duly executed in blank
which Pledge Agreements shall pledge to the Collateral Agent for the benefit of
the Lenders (w) 100% of the capital stock and related interests and rights of
any Domestic Subsidiary and (x) not less than 65% of the Voting Stock of any
Foreign Subsidiary in accordance with the terms hereof and thereof. The Borrower
hereby agrees to, and to cause each Subsidiary to, deliver to the Collateral
Agent for the benefit of the Lenders (y) 100% of the capital stock and related
interests and rights of any Domestic Subsidiary acquired or created after the
Closing Date and (z) not less than 65% of the Voting Stock and 100% of the
non-voting common stock and related interests and rights of any Foreign
Subsidiary acquired or created after the Closing Date in accordance with the
terms hereof and thereof.
4.4. Security Interests. The Borrower shall on or before the
Closing Date deliver or cause to be delivered to the Collateral Agent, the
Security Agreement Amendment, the Consolidated Amendment, the Uniform Commercial
Code financing statements, and each other Security Instrument sufficient to
grant to the Collateral Agent a valid, duly perfected security interest in the
Collateral described therein, subject to no prior Liens other than Permitted
Liens.
4.5. Further Assurances. At the request of the Administrative
Agent, the Borrower will or will cause its Subsidiaries, as the case may be to
execute, by its duly authorized officers, alone or with the Collateral Agent,
any certificate, instrument, statement or document, or to procure any such
certificate, instrument, statement or document, or to take such other action
(and pay all connected costs) which the Administrative Agent or Collateral Agent
reasonably deems necessary from time to time to create, continue or preserve the
liens and security interests in Collateral (and the perfection and priority
thereof) of the Collateral Agent contemplated hereby and by the other
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Loan Documents and specifically including all Collateral acquired by the
Borrower or any Guarantor after the Closing Date.
4.6. Information Regarding Collateral. The Borrower represents,
warrants and covenants that (i) the chief executive office of the Borrower and
each other Person providing Collateral pursuant to a Security Instrument (each,
a "Grantor") at the Closing Date is located at the address or addresses
specified on Schedule 4.6 and (ii) Schedule 4.6 contains a true and complete
list of (a) the name and address of each Grantor and of each other Person that
has effected any merger or consolidation with a Grantor or contributed or
transferred to a Grantor any property constituting Collateral at any time since
January 1, 1993 (excluding Persons making sales in the ordinary course of their
businesses to a Grantor of property constituting inventory in the hands of such
seller), (b) each location of the chief executive office of each Grantor at any
time since January 1, 1993, (c) each location in which goods constituting
Collateral are or have been located since January 1, 1993 (together with the
name of each owner of the property located at such address if not the applicable
Grantor, and a summary description of the relationship between the applicable
Grantor and such Person), and (d) each trade style used by any Grantor since
January 1, 1993 and the purposes for which it was used. Borrower shall not
change, and shall not permit any other Grantor to change, the location of its
chief executive office or any location specified in clause (c) of the
immediately preceding sentence, or use or permit any other Grantor to use, any
additional trade style, except upon giving not less than thirty (30) days' prior
written notice to the Administrative Agent and taking or causing to be taken all
such action at Borrower's or such other Grantor's expense as may be reasonably
requested by the Administrative Agent or the Collateral Agent to perfect or
maintain the perfection of the Lien of the Collateral Agent in the Collateral.
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ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
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 any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, its Note, or its obligation to make Eurodollar
Rate Loans, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement or
its Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment or similar requirement (other than
the Reserve Requirement utilized in the determination of the Eurodollar
Rate) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such Lender (or
its Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its
Applicable Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this Section 5.1(a), the Borrower may, by notice to such Lender (with a copy to
the Administrative Agent), suspend the obligation of such Lender to make or
Continue Loans of the Type with respect to which such compensation is requested,
or to Convert Loans of any other Type into Loans of such Type, until the event
or condition giving rise to such request ceases to be in effect (in which case
the provisions of Section 5.4 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the compensation
so requested.
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(b) If, after the date hereof, any Lender shall have determined
that the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 5.1 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this Section 5.1
shall furnish to the Borrower and the Administrative Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
5.2. Limitation on Types of Loans. If on or prior to the first day
of any Interest Period for any Eurodollar Rate Loan:
(a) the Administrative Agent determines (which
determination shall be conclusive) that by reason of circumstances
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination
shall be conclusive) and notify the Administrative Agent that the
Eurodollar Rate will not adequately and fairly reflect the cost to the
Lenders of funding Eurodollar Rate Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or periods, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Loans of such Type, Continue Loans of such Type,
or to Convert Loans of any other Type into Loans of such Type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with the terms of this Agreement.
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5.3. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Rate Loans
hereunder, then such Lender shall promptly notify the Borrower thereof and such
Lender's obligation to make or Continue Eurodollar Rate Loans and to Convert
other Types of Loans into Eurodollar Rate Loans shall be suspended until such
time as such Lender may again make, maintain, and fund Eurodollar Rate Loans (in
which case the provisions of Section 5.4 shall be applicable).
5.4. Treatment of Affected Loans. If the obligation of any Lender
to make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 5.1
or 5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 5.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 5.1 or 5.3 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans have
been so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued
by such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 5.1 or 5.3 hereof that gave
rise to the Conversion of such Lender's Affected Loans pursuant to this Section
5.4 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Loans of the Affected Type made
by other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective Revolving Credit Commitments.
5.5. Compensation. Upon the request of any Lender, the Borrower
shall pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
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(a) any payment, prepayment, or Conversion of a
Eurodollar Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 10.1) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any condition precedent
specified in Article VI to be satisfied) to borrow, Convert, Continue,
or prepay a Eurodollar Rate Loan on the date for such borrowing,
Conversion, Continuation, or prepayment specified in the relevant
notice of borrowing, prepayment, Continuation, or Conversion under this
Agreement.
5.6. Taxes. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Administrative Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Lender (or its Applicable Lending Office) or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings,
and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall
be required by law to deduct any Taxes from or in respect of any sum payable
under this Agreement or any other Loan Document to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 5.6) such Lender or the
Administrative Agent receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 12.2, the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 5.6) paid by such Lender or
the Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender
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listed on the signature pages hereof and on or prior to the date on which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Administrative Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W- 9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to Section 5.6(d) (unless such failure is due to a change in treaty,
law, or regulation occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be entitled to
indemnification under Section 5.6(a) or 5.6(b) with respect to Taxes imposed by
the United States; provided, however, that should a Lender, which is otherwise
exempt from or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or
for the account of any Lender pursuant to this Section 5.6, then such Lender
will agree to use reasonable efforts to change the jurisdiction of its
Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 5.6 shall survive the termination of the Revolving Credit
Commitments and the payment in full of the Notes.
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ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance. The obligation of the Lenders
to make the initial Advance under the Revolving Credit Facility, and of the
Issuing Bank to issue any Letter of Credit, and of NationsBank to make any Swing
Line Loan, is subject to the conditions precedent that:
(a) the Administrative Agent, or with respect to the
Security Instruments, the Collateral Agent, shall have received on the
Closing Date, in form and substance satisfactory to the Administrative
Agent and Lenders, the following:
(i) executed originals of each of this
Agreement, the Notes, the Security Agreement Amendment, the
Consolidated Amendment, the Pledge Agreement, the LC Account
Agreement and the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions
with respect to the Loan Documents and the transactions
contemplated thereby of counsel to the Credit Parties dated
the Closing Date, addressed to the Administrative Agent and
the Lenders and satisfactory to Xxxxx Xxxxx Mulliss & Xxxxx,
L.L.P., special counsel to the Administrative Agent,
substantially in the form of Exhibit G;
(iii) resolutions of the boards of directors or
other appropriate governing body (or of the appropriate
committee thereof) of each Credit Party certified by its
secretary or assistant secretary as of the Closing Date,
approving and adopting the Loan Documents to be executed by
such Person, and authorizing the execution and delivery
thereof;
(iv) specimen signatures of officers of each of
the Loan Parties executing the Loan Documents on behalf of
such Credit Party, certified by the secretary or assistant
secretary of such Credit Party;
(v) the Organizational Documents of each of the
Loan Parties certified as of a recent date by the Secretary of
State of its state of organization;
(vi) Operating Documents of each of the Loan Parties
certified as of the Closing Date as true and correct by its
secretary or assistant secretary;
(vii) certificates issued as of a recent date by
the Secretaries of State of the respective jurisdictions of
formation of each of the Loan Parties as to the due existence
and good standing of such Person;
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(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each of the Loan Parties as of a recent date by the Secretary
of State or comparable official of each jurisdiction in which
the failure to be qualified to do business or authorized so to
conduct business could have a Material Adverse Effect;
(ix) notice of appointment of the initial
Authorized Representative(s);
(x) evidence of all insurance required by the
Loan Documents;
(xi) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xii) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the
Collateral Agent under the Security Instruments as a first
priority Lien as to items of Collateral in which a security
interest may be perfected by the filing of financing
statements, and such other documents and/or evidence of other
actions as may be necessary under applicable law to perfect
the Liens of the Collateral Agent under the Security
Instruments as a first priority Lien in and to such other
Collateral as the Collateral Agent may require, including
without limitation the delivery by the Borrower of all stock
certificates evidencing Pledged Stock accompanied in each case
by duly executed stock powers (or other appropriate transfer
documents) in blank affixed thereto;
(xiii) evidence that all fees payable by the
Borrower on the Closing Date to the Administrative Agent, NMS
and the Lenders have been paid in full;
(xiv) Uniform Commercial Code search results
showing only those Liens as are acceptable to the Lenders;
(xv) receipt of any consents to the transactions
contemplated in this Agreement or any other Loan Document
required under the Indenture; and
(xvi) such other documents, instruments,
certificates and opinions as the Administrative Agent or any
Lender may reasonably request on or prior to the Closing Date
in connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Administrative
Agent and the Lenders:
(i) there shall not have occurred or become
known to the Administrative Agent or the Lenders any event,
condition, situation or status since
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the date of the information contained in the financial and
business projections, budgets, pro forma data and forecasts
concerning the Borrower and its Subsidiaries the Credit
Parties delivered to the Administrative Agent prior to the
Closing Date that has had or could reasonably be expected to
result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation
or other arbitral, administrative or judicial proceeding shall
be pending or threatened which is reasonably likely to result
in a Material Adverse Effect; and
(iii) the Loan Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Loan
Parties is a party or by which any of them or their properties
is bound, including without limitation, the Indenture.
6.2. Conditions of Revolving Loans and Letter of Credit. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue Letters of Credit and NationsBank to make Swing Line Loans, hereunder on
or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:
(a) the Administrative Agent or, in the case of Swing
Line Loans, NationsBank shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Loan
Parties set forth in Article VII and in each of the other Loan
Documents shall be true and correct in all material respects on and as
of the date of such Advance, Swing Line Loan or Letter of Credit
issuance or renewal, with the same effect as though such
representations and warranties had been made on and as of such date,
except to the extent that such representations and warranties expressly
relate to an earlier date and except that the financial statements
referred to in Section 7.6(a)(i) shall be deemed to be those financial
statements most recently delivered to the Administrative Agent and the
Lenders pursuant to Section 8.1 from the date financial statements are
delivered to the Administrative Agent and the Lenders in accordance
with such Section;
(c) in the case of the issuance of a Letter of Credit,
the Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
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(d) at the time of (and after giving effect to) each
Advance, Swing Line Loan or the issuance of a Letter of Credit, no
Default or Event of Default specified in Article X shall have occurred
and be continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal
balance of all outstanding Revolving Loans for each Lender
shall not exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line
Outstandings shall not exceed $15,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a
Letter of Credit or renewal thereof, the sum of Letter of
Credit Outstandings plus Revolving Credit Outstandings plus
Swing Line Outstandings shall not exceed the Total Revolving
Credit Commitment.
6.3. Supplements to Schedules. The Borrower may, from time to time
but in no event less than five (5) Business Days prior to delivery of any
Borrowing Notice hereunder, amend or supplement Schedules 7.10 and 7.18 to this
Agreement by delivering (effective upon receipt) to the Administrative Agent and
each Lender a copy of such revised Schedule or Schedules which shall (i) be
dated the date of delivery, (ii) be certified by an Authorized Representative as
true, complete and correct as of such date and as delivered in replacement for
the corresponding Schedule or Schedules previously in effect, and (iii) show in
reasonable detail (by blacklining or other graphic means) the material changes
from each such corresponding predecessor Schedule. In the event the Required
Lenders determine based upon such revised Schedules (whether individually or in
the aggregate) that there has been a material change which would have a Material
Adverse Effect since the Closing Date, or such later date as the Borrower shall
have most recently furnished supplements to Schedules under this Section 6.3 or
financial statements under Section 8.1 (a) or (b), the Lenders, upon
notification to the Borrower, shall have no further obligation to make Advances
or Continue or Convert any Loan previously made or renew or extend existing
Letters of Credit.
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ARTICLE VII
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
7.1. Organization and Authority.
(a) The Borrower and each Subsidiary is a corporation
duly organized and validly existing under the laws of the jurisdiction
of its formation;
(b) The Borrower and each Subsidiary (x) has the
requisite power and authority to own its properties and assets and to
carry on its business as now being conducted and as contemplated in the
Loan Documents, and (y) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party (other than the Borrower) has the
power and authority to execute, deliver and perform the Facility
Guaranty and each of the other Loan Documents to which it is a party;
and
(e) When executed and delivered, each of the Loan
Documents to which any Credit Party is a party will be the legal, valid
and binding obligation or agreement, as the case may be, of such Credit
Party, enforceable against such Credit Party in accordance with its
terms, subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity);
7.2. Loan Documents. The execution, delivery and performance by
each Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite
Organizational Action of such Credit Party required for the lawful
execution, delivery and performance thereof;
(b) do not violate any provisions of (i) applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
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(c) does not and will not be in conflict with, result in
a breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or
imposition of any Lien upon any of the properties or assets of such
Credit Party or any Subsidiary except any Liens in favor of the
Collateral Agent and the Lenders created by the Security Instruments;
7.3. Solvency. Each Credit Party is Solvent after giving effect to
the transactions contemplated by the Loan Documents;
7.4. Subsidiaries and Stockholders. The Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries in Schedule 7.4 and
additional Subsidiaries created or acquired after the Closing Date in compliance
with Section 8.19; Schedule 7.4 states as of the date hereof the organizational
form of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
7.4, free and clear of any Lien;
7.5. Ownership Interests. Borrower owns no interest in any Person
other than the Persons listed in Schedule 7.4, equity investments in Persons not
constituting Subsidiaries permitted under Section 9.7 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 8.19;
7.6. Financial Condition.
(a) The Borrower has heretofore furnished to each Lender
an audited balance sheet of the Borrower and its Subsidiaries as at
March 31, 1998 and the notes thereto and the related statements of
operations, stockholders' equity and cash flows for the Fiscal Year
then ended as examined and certified by Xxxxxx Xxxxxxxx LLP. Except as
set forth therein, such financial statements (including the notes
thereto) present fairly the financial condition of the Borrower as of
the end of such Fiscal Year and results of their operations and the
changes in its stockholders' equity for the Fiscal Year then ended, all
in conformity with GAAP applied on a Consistent Basis;
(b) since the later of (i) the date of the audited
financial statements delivered pursuant to Section 7.6(a) hereof or
(ii) the date of the audited financial statements most
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recently delivered pursuant to Section 8.1(a) hereof, there has been no
material adverse change in the condition, financial or otherwise, of
the Borrower or any of its Subsidiaries or in the businesses,
properties, performance, prospects or operations of the Borrower or its
Subsidiaries, nor have such businesses or properties been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or
act of God; and
(c) except as set forth in the financial statements
referred to in Section 7.6(a) or in Schedule 7.6 or permitted by
Section 9.5, neither Borrower nor any Subsidiary has incurred, other
than in the ordinary course of business, any material Indebtedness,
Guaranties or other commitment or liability which remains outstanding
or unsatisfied;
7.7. Title to Properties. The Borrower and each of its Subsidiaries
and each other Credit Party has good and marketable title to all its real and
personal properties, subject to no transfer restrictions or Liens of any kind,
except for the transfer restrictions and Liens described in Schedule 7.7 and
Liens permitted by Section 9.4;
7.8. Taxes. Except as set forth in Schedule 7.8, the Borrower and
each of its Subsidiaries has filed or caused to be filed all federal, state and
local tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in Section 7.6(a) and satisfactory to the Borrower's independent
certified public accountants have been established, have paid or caused to be
paid all taxes as shown on said returns or on any assessment received by it, to
the extent that such taxes have become due;
7.9. Other Agreements. No Credit Party nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which such Credit Party or
any Subsidiary is a party, which default has, or if not remedied within
any applicable grace period would reasonably be likely to have, a
Material Adverse Effect;
7.10. Litigation. Except as set forth in Schedule 7.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or other Credit Party or affecting the Borrower or any Subsidiary or
other Credit Party or any properties or rights of the Borrower or any Subsidiary
or other Credit Party, which would reasonably be likely to have a Material
Adverse Effect;
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7.11. Margin Stock. The proceeds of the borrowings made hereunder
will be used by the Borrower only for the purposes expressly authorized herein.
None of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof;
7.12. Investment Company. No Credit Party is an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The application
of the proceeds of the Loans and repayment thereof by the Borrower and the
performance by the Borrower and the other Loan Parties of the transactions
contemplated by the Loan Documents will not violate any provision of said Act,
or any rule, regulation or order issued by the Securities and Exchange
Commission thereunder, in each case as in effect on the date hereof;
7.13. Patents, Etc. The Borrower and each other Credit Party owns or
has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person,
except in each case where the use or conflict would not reasonably be likely to
have a Material Adverse Effect;
7.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Administrative Agent in connection with the negotiation or preparation of the
Loan Documents contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the circumstance
under which it was made, in order to make any such warranty, representation or
statement contained therein not misleading;
7.15. No Consents, Etc. Neither the respective businesses or
properties of the Loan Parties or any Subsidiary, nor any relationship among the
Loan Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of any Credit Party as a
condition to the execution,
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delivery and performance of, or consummation of the transactions contemplated by
the Loan Documents, which, if not obtained or effected, would be reasonably
likely to have a Material Adverse Effect, or if so, such consent, approval,
authorization, filing, registration or qualification has been duly obtained or
effected, as the case may be;
7.16. Employee Benefit Plans.
(a) Except where noncompliance would not have a Material
Adverse Effect or result in a liability or potential liability
exceeding $1,000,000, the Borrower and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has been determined by the Internal Revenue Service
to be so qualified, and each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code. No material
liability has been incurred by the Borrower or any ERISA Affiliate
which remains unsatisfied for any taxes or penalties with respect to
any Employee Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, or (iv) failed to make a required installment or
other required payment under Section 412 of the Code, Section 302 of
ERISA or the terms of such Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) Except to the extent permitted by ERISA, the present
value of all vested accrued benefits under each Employee Benefit Plan
which is subject to Title IV of ERISA, did not, as of the most recent
valuation date for each such plan, exceed the then current value of the
assets of such Employee Benefit Plan allocable to such benefits;
(e) To the best of the Borrower's knowledge, each
Employee Benefit Plan subject to Title IV of ERISA, maintained by the
Borrower or any ERISA Affiliate, has
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been administered in accordance with its terms in all material respects
and is in compliance in all material respects with all applicable
requirements of ERISA and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
7.17. No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder;
7.18. Environmental Laws. Except as listed on Schedule 7.18, the
Borrower and each Subsidiary is in material compliance with all applicable
Environmental Laws and has been issued and currently maintains all required
federal, state and local permits, licenses, certificates and approvals. Except
as listed on Schedule 7.18, neither the Borrower nor any Subsidiary has been
notified of any pending or threatened action, suit, proceeding or investigation,
and neither the Borrower nor any Subsidiary is aware of any facts, which (a)
calls into question, or could reasonably be expected to call into question,
material compliance by the Borrower or any Subsidiary with any Environmental
Laws, (b) seeks, or could reasonably be expected to form the basis of a
meritorious proceeding, to suspend, revoke or terminate any material license,
permit or approval necessary for the operation of the Borrower's or any
Subsidiary's business or facilities or for the generation, handling, storage,
treatment or disposal of any Hazardous Materials, or (c) seeks to cause, or
could reasonably be expected to form the basis of a meritorious proceeding to
cause, any property of the Borrower or any Subsidiary or other Credit Party to
be subject to any material restrictions on ownership, use, occupancy or
transferability under any Environmental Law;
7.19. Employment Matters. (a) None of the employees of the Borrower
or any Subsidiary is subject to any collective bargaining agreement and there
are no strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or other
material labor/employee related controversies or proceedings pending or, to the
best knowledge of the Borrower, threatened against the Borrower or any
Subsidiary or between the Borrower or any Subsidiary and any of its employees,
other than employee grievances arising in the ordinary course of business which
would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance would
not reasonably be expected to have a Material Adverse Effect, the Borrower and
each Subsidiary is in compliance in all respects with all applicable laws, rules
and regulations pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and
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taxation and there is neither pending or threatened any litigation,
administrative proceeding nor, to the knowledge of the Borrower, any
investigation, in respect of such matters which, if decided adversely, would
reasonably be likely, individually or in the aggregate, to have a Material
Adverse Effect; and
7.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
7.21. Year 2000 Compliance. The Borrower and its Subsidiaries have
(i) initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be Year 2000 Compliant, except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
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ARTICLE VIII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will
cause each Subsidiary to:
8.1. Financial Reports, Etc. (a) As soon as practical and in any
event within 90 days after the end of each Fiscal Year of the Borrower, deliver
or cause to be delivered to the Administrative Agent and each Lender (i)
balance sheets of the Borrower and its Subsidiaries as at the end of such
Fiscal Year, and the notes thereto, and the related statements of operations,
stockholders' equity and cash flows, and the respective notes thereto, for such
Fiscal Year, setting forth comparative financial statements for the preceding
Fiscal Year with a narrative discussion of the comparative financial results
and financial condition of the two periods, all prepared in accordance with
GAAP applied on a Consistent Basis and containing, with respect to the
consolidated financial statements, opinions of Xxxxxx Xxxxxxxx LLP, or other
such independent certified public accountants selected by the Borrower and
approved by the Administrative Agent, which are unqualified as to the scope of
the audit performed and as to the "going concern" status of the Borrower and
without any exception not acceptable to the Required Lenders, and (ii) a
certificate of an Authorized Representative demonstrating compliance with
Sections 9.1(a) through 9.1(c), 9.3 and 9.5(h), which certificate shall be in
the form of Exhibit H. To the extent that the Borrower's annual report on Form
10-K contains any of the foregoing items, the Administrative Agent and the
Lenders will accept the Borrower's Form 10-K in lieu of such items;
(b) as soon as practical and in any event within 45 days after the
end of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
beginning with the fiscal quarter ending on June 30, 1998, deliver to the
Administrative Agent and each Lender (i) balance sheets of the Borrower and its
Subsidiaries as at the end of such fiscal quarter and most recent Fiscal Year,
and the related statements of operations and cash flows for such fiscal quarter
and for the comparable fiscal quarter in the prior Fiscal Year with a narrative
discussion of the comparative financial results and financial condition of the
two periods, and accompanied by a certificate of an Authorized Representative
to the effect that such financial statements present fairly the financial
position of the Borrower and its Subsidiaries as of the end of such fiscal
period and the results of their operations and the changes in their financial
position for such fiscal period, subject to year end audit and other customary
adjustments to interim financial statements and (ii) a certificate of an
Authorized Representative containing computations for such quarter comparable
to that required pursuant to Section 8.1(a)(ii); to the extent that the
Borrowers' quarterly report on Form 10-Q contains any of the foregoing items,
the Administrative Agent and the Lenders will accept the Borrower's Form 10-Q
in lieu of such items;
(c) together with each delivery of the financial statements required
by Section 8.1(a)(i), deliver to the Administrative Agent and each Lender a
letter from the Borrower's accountants specified in Section 8.1(a)(i) stating
that in performing the audit necessary to render an opinion on the financial
statements delivered under Section 8.1(a)(i), they obtained no knowledge of any
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Default or Event of Default by the Borrower in the fulfillment of the terms and
provisions of this Agreement insofar as they relate to financial matters (which
at the date of such statement remains uncured); or if the accountants have
obtained knowledge of such Default or Event of Default, a statement specifying
the nature and period of existence thereof;
(d) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Administrative Agent and each Lender a copy of
(i) all regular or special reports or effective registration statements which
Borrower or any Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange, (ii) any
proxy statement distributed by the Borrower or any Subsidiary to its
shareholders, bondholders or the financial community in general, and (iii) any
management letter or other report submitted to the Borrower or any Subsidiary
by independent accountants in connection with any annual, interim or special
audit of the Borrower or any Subsidiary;
(e) not later than thirty (30) days after the last Business Day of
each Fiscal Year, deliver to the Administrative Agent and each Lender a
projection of the expected financial condition and results of operations of the
Borrower and its Subsidiaries on a consolidated basis for the upcoming Fiscal
Year (including, but not limited to, a projected consolidated balance sheet,
statement of operations, statement of cash flows and statement of changes in
stockholder's equity, and including a detailed breakdown of proposed Capital
Expenditures, with a narrative discussion of the assumptions behind the
projections); and
(f) promptly, from time to time, deliver or cause to be delivered to
the Administrative Agent and each Lender such other information regarding
Borrower's and any Subsidiary's operations, business affairs and financial
condition as the Administrative Agent or such Lender may reasonably request;
The Administrative Agent and the Lenders are hereby authorized to
deliver a copy of any such financial or other information delivered hereunder
to the Lenders (or any affiliate of any Lender) or to the Administrative Agent,
to any Governmental Authority having jurisdiction over the Administrative Agent
or any of the Lenders pursuant to any written request therefor or in the
ordinary course of examination of loan files, or to any other Person who shall
acquire or consider the assignment of, or acquisition of any participation
interest in, any Obligation permitted by this Agreement;
8.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and
other intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices;
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8.3. Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 9.8, or except to the extent the failure would not
reasonably be expected to have a Material Adverse Effect, do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence and all material rights and franchises, and maintain its license or
qualification to do business as a foreign corporation and good standing in each
jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary;
8.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been
established unless and until any Lien resulting therefrom attaches to any of
its property and becomes enforceable against its creditors;
8.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and otherwise as required by the Security Instruments, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) and against loss by reason by business interruption,
such policies of insurance to have such limits, deductibles, exclusions,
co-insurance and other provisions providing no less coverages than that
specified in Schedule 8.5, such insurance policies which insure the Collateral
to be in form reasonably satisfactory to the Collateral Agent. Each of the
policies of insurance described in this Section 8.5 insuring any of the
Collateral shall provide that the insurer shall give the Collateral Agent not
less than thirty (30) days' prior written notice before any such policy shall
be terminated, lapse or be altered in any manner;
8.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect
to doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim
as well as year-end financial statements;
8.7. Right of Inspection. Permit any Person designated by any Lender
or the Administrative Agent to visit and inspect any of the properties,
corporate books and financial reports of the Borrower or any Subsidiary and to
discuss its affairs, finances and accounts with its principal officers and
independent certified public accountants, all at reasonable times, at
reasonable intervals and with reasonable prior notice;
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8.8. Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of
any Governmental Authority with respect to the conduct of its business;
8.9. Governmental Licenses. Obtain and maintain all licenses,
permits, certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as currently
conducted and as contemplated by the Loan Documents, except where the failure
would not reasonably be expected to have a Material Adverse Effect;
8.10. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 8.2 through 8.9, and 8.18
inclusive;
8.11. Officer's Knowledge of Default. Upon either the Chief Executive
Officer, the Chief Financial Officer or Assistant Treasurer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary or other Credit Party to any
Lender, or any event, development or occurrence which would reasonably be
expected to have a Material Adverse Effect, cause such officer or an Authorized
Representative to promptly notify the Administrative Agent of the nature
thereof, the period of existence thereof, and what action the Borrower or such
Subsidiary or other Credit Party proposes to take with respect thereto;
8.12. Suits or Other Proceedings. Upon either the Chief Executive
Officer, the Chief Financial Officer or Assistant Treasurer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or other Credit Party, or any
attachment, levy, execution or other process being instituted against any
assets of the Borrower or any Subsidiary or other Credit Party, making a claim
or claims in an aggregate amount greater than $10,000,000 not otherwise covered
by insurance, promptly deliver to the Administrative Agent written notice
thereof stating the nature and status of such litigation, dispute, proceeding,
levy, execution or other process;
8.13. Notice of Environmental Complaint or Condition. Promptly provide
to the Administrative Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims or citations received by the
Borrower or any Subsidiary relating to any (a) violation or alleged violation
by the Borrower or any Subsidiary of any applicable Environmental Law; (b)
release or threatened release by the Borrower or any Subsidiary, or by any
Person handling, transporting or disposing of any Hazardous Material on behalf
of the Borrower or any Subsidiary, or at any facility or property owned or
leased or operated by the Borrower or any Subsidiary, of any Hazardous
Material, except where occurring legally pursuant to a permit or license; or
(c) liability or alleged liability of the Borrower or any Subsidiary for the
costs of cleaning up, removing, remediating or responding to a release of
Hazardous Materials;
8.14. Environmental Compliance. If the Borrower or any Subsidiary
shall receive any letter, notice, complaint, order, directive, claim or
citation alleging that the Borrower or any
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Subsidiary has violated any Environmental Law, has released any Hazardous
Material, or is liable for the costs of cleaning up, removing, remediating or
responding to a release of Hazardous Materials, the Borrower and any Subsidiary
shall, within the time period permitted and to the extent required by the
applicable Environmental Law or the Governmental Authority responsible for
enforcing such Environmental Law, remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation or release or satisfy such
liability;
8.15. Indemnification. Without limiting the generality of Section
12.9, the Borrower hereby agrees to indemnify and hold the Agents and the
Lenders, and their respective officers, directors, employees and agents,
harmless from and against any and all claims, losses, penalties, liabilities,
damages and expenses (including assessment and cleanup costs and reasonable
attorneys', consultants' or other expert fees, expenses and disbursements)
arising directly or indirectly from, out of or by reason of (a) the violation
of any Environmental Law by the Borrower or any Subsidiary or with respect to
any property owned, operated or leased by the Borrower or any Subsidiary or (b)
the handling, storage, transportation, treatment, emission, release, discharge
or disposal of any Hazardous Materials by or on behalf of the Borrower or any
Subsidiary, or on or with respect to property owned or leased or operated by
the Borrower or any Subsidiary. The provisions of this Section 8.15 shall
survive repayment of the Obligations or the Facility Termination Date and
expiration or termination of this Agreement;
8.16. Further Assurances. At the Borrower's cost and expense, upon
request of the Administrative Agent or the Collateral Agent, duly execute and
deliver or cause to be duly executed and delivered, to the Administrative Agent
or the Collateral Agent, as the circumstances may dictate, such further
instruments, documents, certificates, financing and continuation statements,
and do and cause to be done such further acts that may be reasonably necessary
or advisable in the reasonable opinion of the Administrative Agent or the
Collateral Agent to carry out more effectively the provisions and purposes of
this Agreement, the Security Instruments and the other Loan Documents;
8.17. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within
thirty (30) days thereof, give notice to the Administrative Agent of
(a) the establishment of any new Pension Plan (which notice shall
include a copy of such plan), (b) the commencement of contributions to
any Employee Benefit Plan to which the Borrower or any of its ERISA
Affiliates was not previously contributing, (c) any material increase
in the benefits of any existing Employee Benefit Plan, (d) each
funding waiver request filed with respect to any Employee Benefit Plan
and all communications received or sent by the Borrower or any ERISA
Affiliate with respect to such request and (e) the failure of the
Borrower or any ERISA Affiliate to make a required installment or
payment under Section 302 of ERISA or Section 412 of the Code
exceeding in the aggregate $750,000 by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt
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"prohibited transaction," as such term is defined in Section 406 of
ERISA or Section 4975 of the Code, in connection with any Pension Plan
or any trust created thereunder, deliver to the Administrative Agent a
notice specifying the nature thereof, what action the Borrower or any
ERISA Affiliate has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with
respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Administrative Agent copies of (a) any unfavorable determination
letter from the Internal Revenue Service regarding the qualification
of an Employee Benefit Plan under Section 401(a) of the Code, (b) all
notices received by the Borrower or any ERISA Affiliate of the PBGC's
intent to terminate any Pension Plan or to have a trustee appointed to
administer any Pension Plan, (c) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by the
Borrower or any ERISA Affiliate with the Internal Revenue Service with
respect to each Pension Plan and (d) all notices received by the
Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant
to Section 4202 of ERISA. The Borrower will notify the Administrative
Agent in writing within five (5) Business Days of the Borrower or any
ERISA Affiliate obtaining knowledge or reason to know that the
Borrower or any ERISA Affiliate has filed or intends to file a notice
of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA;
8.18. Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted;
8.19. New Subsidiaries. Simultaneously with the acquisition or
creation of any Subsidiary, cause to be delivered to the Administrative Agent
or, with respect to the items described in Section 8.19(b) and 8.19(c) hereof,
the Collateral Agent, for the benefit of the Lenders each of the following:
(a) if such Subsidiary is a Domestic Subsidiary, a Facility
Guaranty executed by such Subsidiary substantially in the form of
Exhibit I and a Security Agreement substantially in the form of
Exhibit J;
(b) if such Subsidiary is a corporation or is a non-corporate
entity that has issued certificates evidencing ownership of interests
therein, (A) the Pledged Stock or, if applicable, certificates of
ownership of such interests, together with duly executed stock powers
or powers of assignment in blank affixed thereto, and (B) if such
Collateral shall be owned by a Subsidiary who has not then executed
and delivered to the Collateral Agent a Security Instrument from the
owner of such Collateral granting a Lien to the Collateral Agent in
such Collateral, a Pledge Agreement substantially similar in form and
content to that executed and delivered by the Borrower as of the
Closing Date, with appropriate
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revisions as to the identity of the pledgor and securing the
obligations of such pledgor under its Facility Guaranty;
(c) if such Subsidiary is a non-corporate entity not described
in clause (b) immediately above, (A) the certificate of the registrar
of such entity with respect to the registration of the Lien on
ownership interests, and (B) if such Collateral shall be owned by a
Subsidiary who has not then executed and delivered to the Collateral
Agent a Security Instrument from the owner of such Collateral granting
a Lien to the Collateral Agent in such Collateral, a Pledge Agreement
substantially similar in form and content to that executed and
delivered by the Borrower as of the Closing Date, with appropriate
revisions as to the identity of the pledgor and securing the
obligations of such pledgor under its Facility Guaranty;
(d) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Facility Guaranty and other Loan Documents
provided for in this Section 8.19 and addressed to the Administrative
Agent and the Lenders, in form and substance reasonably acceptable to
the Administrative Agent (which opinion may include assumptions and
qualifications of similar effect to those contained in the opinions of
counsel delivered pursuant to Section 6.1(a)), to the effect that:
(A) such Subsidiary is duly organized, validly existing
and in good standing in the jurisdiction of its formation, has
the requisite power and authority to own its properties and
conduct its business as then owned and then conducted and
proposed to be conducted, and is duly qualified to transact
business and is in good standing as a foreign corporation or
partnership in each other jurisdiction in which the character of
the properties owned or leased, or the business carried on by
it, requires such qualification and the failure to be so
qualified would reasonably be likely to result in a Material
Adverse Effect; and
(B) the execution, delivery and performance of the
Facility Guaranty and other Loan Documents described in this
Section 8.19 to which such Subsidiary is a signatory have been
duly authorized by all requisite corporate or partnership action
(including any required shareholder or partner approval), each
of such agreements has been duly executed and delivered and
constitutes the valid and binding agreement of such Subsidiary,
enforceable against such Subsidiary in accordance with its
terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally and
to the effect of general principles of equity (whether
considered in a proceeding at law or in equity);
(e) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the board of
directors, partners, or appropriate committees thereof (and, if
required by such charter
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documents, bylaws or by applicable law, of the shareholders) of such
Subsidiary authorizing the actions and the execution and delivery of
documents described in this Section 8.19.
8.20. Year 2000 Compliance. The Borrower will promptly notify the
Administrative Agent and the Lenders in the event the Borrower discovers or
determines that any computer application (including those affected by
information received from its suppliers and vendors) that is material to its or
any of its Subsidiaries' business and operations will not be Year 2000
Compliant on a timely basis, except to the extent that such failure could not
reasonably be expected to have a Material Adverse Effect.
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ARTICLE IX
Negative Covenants
Until the Obligations have been paid and satisfied in full, no Letters
of Credit remain outstanding and this Agreement has been terminated in
accordance with the terms hereof, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, nor will it permit any Subsidiary
to:
9.1. Financial Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any Four-Quarter Period to be greater than 3.75 to 1.00.
(b) Consolidated Net Worth. Permit Consolidated Net Worth to be less
than the sum of (i) $155,000,000, plus (ii) for each fiscal quarter of the
Borrower since the Closing Date to the most recent fiscal quarter of the
Borrower being reported, 50% of Consolidated Net Income greater than -0-, plus
(iii) (for purposes of this Section 9.1(b) only, without duplication) 50% of
any after tax extraordinary gain, plus (iv) 75% of the Net Proceeds of any
Equity Offering.
(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio to be less than 2.75 to 1.00.
9.2. Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition
and, if the Cost of Acquisition is in excess of $25,000,000, the Borrower shall
have furnished to the Administrative Agent (A) pro forma historical financial
statements as of the end of the most recently completed Fiscal Year of the
Borrower and most recent interim fiscal quarter, if applicable giving effect to
such Acquisition and (B) a certificate in the form of Exhibit H prepared on a
historical pro forma basis giving effect to such Acquisition, which certificate
shall demonstrate that no Default or Event of Default would exist immediately
after giving effect thereto, (iii) the Person acquired shall be a wholly-owned
Subsidiary, or be merged into the Borrower or a wholly-owned Subsidiary,
immediately upon consummation of the Acquisition (or if assets are being
acquired, the acquiror shall be the Borrower or a wholly-owned Subsidiary), and
(iv) if the Cost of Acquisition shall exceed $50,000,000, the Required Lenders
shall consent to such Acquisition in their discretion;
9.3. Capital Expenditures. Make or become committed to make Capital
Expenditures, which exceed in the aggregate in any Fiscal Year of the Borrower
$35,000,000 (on a limited
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cumulative basis, with the effect that amounts up to $7,500,000 not expended in
any Fiscal Year may be carried forward to subsequent Fiscal Years, provided
however, Capital Expenditures in any Fiscal Year, inclusive of amounts carried
forward from previous Fiscal Years, shall in no event exceed $50,000,000).
9.4. Liens. Incur, create or permit to exist any Lien, charge or
other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by the Borrower or any Subsidiary, other
than
(a) Liens created under the Security Instruments in favor of
the Collateral Agent and the Lenders, and Liens otherwise existing as
of the date hereof and as set forth in Schedule 7.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP
and which Liens are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted, and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges
or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower
or any Subsidiary;
(f) Liens on fixed assets of the Borrower and its Subsidiaries
securing Indebtedness permitted under Section 9.5(h), provided the
amount of such Indebtedness so secured does not exceed at any time ten
percent (10%) of Consolidated Tangible Assets, and provided further
that, with respect to purchase money Indebtedness and Capital
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Leases, the amount of such Indebtedness represents not less than 75%
of the aggregate book value of the fixed assets securing such
Indebtedness and no property other than the assets purchased secures
such Indebtedness;
(g) Subject to Section 10.1(i), Liens arising by reason of any
judgment, decree or order of any court, to the extent that such
judgment, decree or order is adequately bonded, or such judgment,
decree or order is covered by insurance as to which the insurance
company has not disclaimed or disputed in writing its obligations for
coverage, or appropriate legal proceedings have been duly initiated
for the review of such judgment, decree or order and such proceedings
have not been formally terminated, or the period within which such
proceedings may be initiated has not expired; or
(h) Liens securing refinancing, extensions or renewals of
Indebtedness or obligations secured by Liens permitted in clauses (a)
through (f) above; provided that (x) the amount of any such extended,
renewed or refinancing Indebtedness or obligation is not increased,
(y) such extended, renewed or refinancing Indebtedness or obligation
is on terms and conditions no more restrictive than the terms and
conditions of the Indebtedness or obligations being extended or
renewed and (z) such Liens cover only property or assets theretofore
subject thereto (and for purposes of this clause (i) "refinancing"
Indebtedness shall have the meaning provided in Section 9.5(a));
9.5. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in Schedule 7.6 and any refinancing of such Indebtedness; provided,
that the aggregate principal amount of such refinancing Indebtedness
is not increased and such refinancing is on terms and conditions no
more restrictive than the terms and conditions of the Indebtedness
being refinanced (and for purposes hereof a "refinancing" Indebtedness
shall include Indebtedness incurred within 90 days after the
refinanced Indebtedness is repaid);
(b) Indebtedness owing to the Administrative Agent or any
Lender in connection with this Agreement, any Note or other Loan
Document;
(c) Indebtedness under the Senior Notes and the Indenture;
(d) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(e) Indebtedness arising from Rate Hedging Obligations
permitted under Section 9.16;
(f) Guaranties of the Borrower or any Guarantor in respect of
Indebtedness permitted to be incurred under this Section 9.5;
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(g) Without limitation on the provisions of Section 9.5(a),
the Borrower may refinance or otherwise restructure the $20,000,000
outstanding balance of the Subordinated Intercompany Note (including
without limitation by assuming another obligation as a result of the
merger of FLS into the Borrower or by directly entering into a new
obligation in replacement of the Subordinated Intercompany Note),
provided that the Indebtedness resulting from such refinancing or
restructuring is subordinate to the Notes and includes scheduled
principal payments not exceeding $3,500,000 in any Fiscal Year; and
(h) additional Indebtedness not otherwise covered by clauses
(a) through (g) above, provided that the aggregate outstanding
principal amount of all such other Indebtedness permitted under this
clause (h) shall in no event exceed twenty percent (20%) of
Consolidated Tangible Assets at any time;
9.6. Transfer of Assets. Sell, lease, transfer or otherwise dispose
of any assets of Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of property that
is substantially worn, damaged, obsolete or, in the judgment of the Borrower,
no longer best used or useful in its business or that of any Subsidiary
(including, but not limited to up to $14,000,000 identified as assets held for
sale on the Borrower's consolidated balance sheet as of March 31, 1998), (c)
transfers of assets necessary to give effect to merger or consolidation
transactions permitted by Section 9.8, (d) the disposition of Eligible
Securities in the ordinary course of management of the investment portfolio of
the Borrower and its Subsidiaries, (e) sales and other transfers of assets from
the Borrower to a Guarantor and vice versa (including without limitation the
sale or other transfer of receivables between the Borrower and AFI); (f) the
sale or other disposition of all or any substantial part of the Atlas division
of the Borrower; (g) the sale or other disposition of assets up to $10,000,000
in any Fiscal Year to the extent that the net proceeds thereof are reinvested
in the business of the Borrower or any Guarantor within twelve months
thereafter; and (h) other dispositions in any one Fiscal Year at fair market
value of assets that do not constitute Collateral having a book or market value
(whichever is higher) not exceeding $5,000,000;
9.7. Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set forth
in Schedule 7.4;
(d) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in
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connection with accounts of financially troubled Persons to the extent
reasonably necessary in order to prevent or limit loss;
(e) investments in Subsidiaries which are Guarantors;
(f) other loans, advances and investments made in the ordinary
course of business in an aggregate principal amount at any time
outstanding not to exceed $5,000,000;
(g) loans to officers, directors and employees of the Borrower
or any Subsidiary not exceeding in an aggregate principal amount at
any time outstanding not to exceed $1,000,000;
(h) promissory notes received as a result of a sale or other
disposition of an asset permitted under Section 9.6; and
(i) additional Investments not otherwise covered by clauses
(a) through (h) above, provided that the aggregate amount of such
Investments permitted under this clause (i) shall not exceed ten
percent (10%) of Consolidated Net Worth.
9.8. Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c)
liquidate, wind-up or dissolve or sell, transfer or lease or otherwise dispose
of all or a substantial part of its assets (other than sales and other
transfers permitted under Section 9.6); provided, however, (i) any Subsidiary
of the Borrower may merge or transfer all or substantially all of its assets
into or consolidate with the Borrower or any wholly-owned Subsidiary of the
Borrower, (ii) the Borrower may merge FLS into the Borrower, and (iii) any
other Person may merge into or consolidate with the Borrower or any
wholly-owned Subsidiary and any Subsidiary may merge into or consolidate with
any other Person in order to consummate an Acquisition permitted by Section
9.2, provided further, that any resulting or surviving entity shall execute and
deliver such agreements and other documents, including a Facility Guaranty, and
take such other action as the Administrative Agent may require to evidence or
confirm its express assumption of the obligations and liabilities of its
predecessor entities under the Loan Documents;
9.9. Restricted Payments. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
provided, however, the Borrower may make the following Restricted Payments in
any Fiscal Year (on a non-cumulative basis, with the effect that amounts not
paid in any Fiscal Year may not be carried over for payment in a subsequent
period) if immediately prior to and immediately after giving effect thereto no
Default or Event of Default shall exist or occur and be continuing:
(a) cash payments or dividends to or on behalf of FLS for (i)
reimbursement of tax obligations not otherwise paid by the Borrower,
and (ii) holding company expenses not to exceed $100,000;
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(b) the refinancing or other restructuring of up to $20,000,000
of the principal amount of the Subordinated Intercompany Note;
provided, however, that any Indebtedness resulting from such
refinancing or restructuring (i) is subordinate to the Obligations
under subordination terms substantially similar to those contained in
the Subordinated Intercompany Note, (ii) is in an aggregate principal
amount not greater than the amount being refinanced or restructured,
and (iii) includes scheduled principal payments in an amount not to
exceed $3,500,000 in any Fiscal Year; and
(c) sales and other transfers of assets from the Borrower or a
Guarantor to the Borrower or a Guarantor (including without limitation
the sale or other transfer of receivables between the Borrower and
AFI); and
(d) other Restricted Payments not otherwise covered by clauses
(a) through (c) above made after the Closing Date not in excess of the
sum of (i) fifty percent (50%) of the Consolidated Net Income during
the period (taken as one accounting period) from the first day of the
Borrower's fiscal quarter ending on June 30, 1998 to the last day of
the Borrower's most recently ended fiscal quarter for which internal
financial statements are available at the time of such proposed
Restricted Payment (or, if such aggregate Consolidated Net Income is a
loss, minus 100% of such amount); (ii) twenty-five percent (25%) of
the aggregate Net Proceeds received by the Borrower after the Closing
Date from any Equity Offering; and (iii) $10,000,000.
9.10. Transactions with Affiliates. Other than transactions permitted
under Sections 9.7, 9.8 and 9.9, enter into any transaction after the Closing
Date, including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Borrower or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Borrower or
such Subsidiary and (c) that the Borrower may purchase, sell, exchange or lease
property to or from an Affiliate upon fair and reasonable terms no less
favorable to the Borrower (or any Subsidiary) than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate;
9.11. Compliance with ERISA. With respect to any Pension Plan,
Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC exceeding $1,000,000; or
(b) except to the extent permitted under ERISA, permit the
present value of all benefit liabilities under all Pension Plans to
exceed the current value of the assets of such Pension Plans allocable
to such benefit liabilities; or
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(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to
Section 502(I) of ERISA or a tax pursuant to Section 4975 of the Code
is reasonably likely to be imposed exceeding in the aggregate
$1,000,000 for which a statutory or class exemption is not available
or a private exemption has not been obtained; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
material additional liability to the Borrower or any ERISA Affiliate
or materially increase the obligation of the Borrower or any ERISA
Affiliate to a Multiemployer Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable
laws and the regulations and interpretations thereof;
9.12. Fiscal Year. Change its Fiscal Year;
9.13. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 9.8;
9.14. Limitations on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property, whether now owned or hereafter acquired in a related
transaction or series of related transactions, which has been or is to be sold
or transferred by the Borrower or any Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or any
Subsidiary if, after giving effect thereto, the aggregate outstanding amount of
all such transactions then in effect would exceed $25,000,000;
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9.15. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control;
9.16. Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to
Rate Hedging Obligations, except pursuant to Swap Agreements in an aggregate
notional amount not to exceed at any time 10% of the Total Revolving Credit
Commitment;
9.17. Negative Pledge Clauses. Except with respect to the Indenture,
enter into or cause, suffer or permit to exist any agreement with any Person
other than the Agents and the Lenders pursuant to this Agreement or any other
Loan Documents which prohibits or limits the ability of any of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired,
provided that the Borrower and any Subsidiary may enter into such an agreement
in connection with property acquired with the proceeds of purchase money
Indebtedness and Capital Leases to the extent permitted hereunder when such
prohibition or limitation is by its terms effective only against the assets
subject to such Lien;
9.18. Prepayments, Etc. of Indebtedness.
(a) Other than the refinancing or restructuring permitted under
Section 9.5, prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Indebtedness
subordinate to the Obligations; or
(b) amend, modify or change in any manner any term or condition
of any Indebtedness described in Section 9.5(a) so that the terms and
conditions thereof are less favorable to the Agents and the Lenders
than the terms of such Indebtedness as of the Closing Date.
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ARTICLE X
Events of Default and Acceleration
10.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment of
the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III, at maturity,
by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of
any amount of interest on any Loan, Reimbursement Obligation or other
Obligation or of any fees or other amounts payable to any of the
Lenders or the Administrative Agent on the date within three (3)
Business Days on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 8.7, 8.11, 8.19 or Article IX;
(d) if a default shall be made in the performance or observance
of, or shall occur under, any covenant, agreement or provision
contained in this Agreement or the Notes (other than as described in
clauses (a), (b) or (c) above) and such default shall continue for 30
or more days after the earlier of receipt of notice of such default by
the Authorized Representative from the Administrative Agent or an
officer of the Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in any of the
other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the
Administrative Agent or any of the Lenders or delivered to the
Administrative Agent or any of the Lenders in connection with or
pursuant to this Agreement or any of the Obligations, or if any Loan
Document ceases to be in full force and effect (other than by reason
of any action by the Agents), or if without the written consent of the
Lenders, this Agreement or any other Loan Document shall be
disaffirmed or shall terminate, be terminable or be terminated or
become void or unenforceable for any reason whatsoever (other than in
accordance with its terms in the absence of default or by reason of
any action by the Lenders or the Agents); or
(e) if there shall occur (i) a default, which is not waived, in
the payment of any principal, interest, premium or other amount with
respect to any Indebtedness or Rate Hedging Obligation (other than the
Loans and other Obligations) of the Borrower or any
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Subsidiary in an amount not less than $1,000,000 in the aggregate
outstanding, or (ii) a default, which is not waived, in the
performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which
any such Indebtedness or Rate Hedging Obligation may have been issued,
created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, or (iii) any other event of default as specified in any
agreement or instrument under or pursuant to which any such
Indebtedness or Rate Hedging Obligation may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, and
such default or event of default shall continue for more than the
period of grace, if any, therein specified, or such default or event
of default shall permit the holder of any such Indebtedness (or any
agent or trustee acting on behalf of one or more holders) to
accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Administrative Agent or any
Lender by or on behalf of the Borrower or any other Credit Party
pursuant to or in connection with any Loan Document, or otherwise,
shall be false or misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary or other Credit Party
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect
for a period of sixty (60) days; or if, under the provisions of any
other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of the Borrower or any
Subsidiary or other Credit Party or of the whole or any substantial
part of its properties, which control is not relinquished within sixty
(60) days; or if there is commenced against the Borrower or any
Subsidiary or other Credit Party any proceeding or petition seeking
reorganization, arrangement, liquidation or similar relief under the
federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state which proceeding or petition
remains undismissed for a period of sixty (60) days; or if the
Borrower or any Subsidiary or other Credit Party takes any action to
indicate its consent to or approval of any such proceeding or
petition; or
(i) if (i) one or more judgments or orders where the amount not
covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $1,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment,
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injunction or execution against any of the Borrower's or Subsidiaries'
properties for any amount in excess of $1,000,000 in the aggregate;
and such judgment, attachment, injunc tion or execution remains
unpaid, unstayed, undischarged, unbonded or undismissed for a period
of thirty (30) days; or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days; or
(k) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
then, and in any such event and at any time thereafter, if such Event of
Default or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken:
(i) the Administrative Agent, with the consent of the Required
Lenders, may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders and the Issuing
Bank to make further Revolving Loans and Swing Line Loans or to
issue additional Letters of Credit terminated, whereupon the
obligation of each Lender to make further Revolving Loans, of
NationsBank to make further Swing Line Loans, and of the Issuing
Bank to issue additional Letters of Credit, hereunder shall
terminate immediately, and (ii) the Administrative Agent shall
at the direction of the Required Lenders, at their option,
declare by notice to the Borrower any or all of the Obligations
to be immediately due and payable, and the same, including all
interest accrued thereon and all other obligations of the
Borrower to the Administrative Agent and the Lenders, shall
forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the Obligations
to the contrary notwithstanding; provided, however, that
notwithstanding the above, if there shall occur an Event of
Default under clause (g) or (h) above, then the obligation of
the Lenders to make Revolving Loans, of NationsBank to make
Swing Line Loans, and of the Issuing Bank to issue Letters of
Credit hereunder shall automatically terminate and any and all
of the Obligations shall be immediately due and payable without
the necessity of any action by the Administrative Agent or the
Required Lenders or notice to the Administrative Agent or the
Lenders;
(B) the Borrower shall, upon demand of the Administrative
Agent or the Required Lenders, deposit cash with the
Administrative Agent in an amount equal to the amount of any
Letter of Credit Outstandings, as collateral security for the
repayment of any future drawings or payments under such Letters
of Credit, and
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such amounts shall be held by the Administrative Agent pursuant
to the terms of the LC Account Agreement; and
(C) the Agents and each of the Lenders shall have all of
the rights and remedies available under the Loan Documents or
under any applicable law.
10.2. Agents to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agents may, with the consent of the
Required Lenders, and at the direction of the Required Lenders shall, proceed
to protect and enforce their rights or remedies either by suit in equity or by
action at law, or both, whether for the specific performance of any covenant,
agreement or other provision contained herein or in any other Loan Document, or
to enforce the payment of the Obligations or any other legal or equitable right
or remedy.
10.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agents is intended to be exclusive of any other rights or
remedies contained herein or in any other Loan Document, and every such right
or remedy shall be cumulative and shall be in addition to every other such
right or remedy contained herein and therein or now or hereafter existing at
law or in equity or by statute, or otherwise.
10.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Agents or any failure or delay on the part of any Lender or the
Agents in exercising any rights or remedies under any Loan Document or
otherwise available to it shall operate as a waiver of any rights or remedies
and no single or partial exercise of any rights or remedies shall operate as a
waiver or preclude the exercise of any other rights or remedies hereunder or of
the same right or remedy on a future occasion.
10.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by the Administrative Agent hereunder,
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Borrower hereunder, shall be applied by the
Administrative Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.10, 3.3,
3.4 and 12.5;
(b) amounts due to the Administrative Agent pursuant to Section
11.9;
(c) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of
the Lenders (with amounts payable in respect of Swing Line
Outstandings being included in such calculation and paid to
NationsBank);
(d) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of
the Lenders (with amounts payable in
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respect of Swing Line Outstandings being included in such calculation
and paid to NationsBank);
(e) payments of cash amounts to the Administrative Agent in
respect of outstanding Letters of Credit pursuant to Section 10.1(B);
(f) amounts due to the Lenders pursuant to Sections 3.2(g),
8.15 and 12.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) amounts due to any of the Lenders in respect of Obligations
consisting of liabilities under any Swap Agreement with any of the
Lenders on a pro rata basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XI
The Agents
11.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its
administrative agent under this Agreement and the other Loan Documents with
such powers and discretion as are specifically delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. Each Lender hereby
irrevocably appoints and authorizes the Collateral Agent to act as its
collateral agent under the Security Instruments with such powers and discretion
as are specifically delegated to the Collateral Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Administrative Agent and the Collateral
Agent (which terms as used in this sentence and in Section 11.5 and the first
sentence of Section 11.6 hereof shall include the Administrative Agent's and
the Collateral Agent's affiliates and their own and their affiliates' officers,
directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain,
inquire into, or verify the performance or observance of any covenants
or agreements by any Credit Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any
Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any litigation
or collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted to
be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agents may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by them with reasonable care.
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11.2. Reliance by Agents. The Agents shall be entitled to rely upon
any certification, notice, instrument, writing, or other communication
(including, without limitation, any thereof by telephone or telefacsimile)
believed by them to be genuine and correct and to have been signed, sent or
made by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any Credit Party),
independent accountants, and other experts selected by them. The Administrative
Agent may deem and treat the payee of any Note as the holder thereof for all
purposes hereof unless and until the Administrative Agent receives and accepts
an Assignment and Acceptance executed in accordance with Section 12.1 hereof.
As to any matters not expressly provided for by this Agreement, the Agents
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in
so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the Lenders;
provided, however, that neither the Administrative Agent nor the Collateral
Agent shall be required to take any action that exposes it to personal
liability or that is contrary to any Loan Document or applicable law or unless
it shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of taking
any such action.
11.3. Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received written notice from a Lender or the
Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Agents shall (subject to Section 11.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the
Required Lenders, provided that, unless and until the Agents shall have
received such directions, the Agents may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as the Agents shall deem advisable in the best interest of
the Lenders.
11.4. Rights as Lender. With respect to its Revolving Credit
Commitment and the Loans made by it, the Agents (and any successor acting as
Administrative Agent or Collateral Agent) and the Co-Agent, in their respective
capacities as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though they were not
acting as the Administrative Agent, Collateral Agent or Co-Agent, as the case
may be, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent, the Collateral Agent and the
Co-Agent in their respective individual capacities. Each of the Agents (and any
successor acting as Administrative Agent or Collateral Agent) and the Co-
Agent, and their respective affiliates may (without having to account therefor
to any Lender) accept deposits from, lend money to, make investments in,
provide services to, and generally engage in any kind of lending, trust, or
other business with any Credit Party or any of its Subsidiaries or affiliates
as if it were not acting as Administrative Agent, Collateral Agent or Co-
Agent, as the case may be, and the Agents (and any successor acting as
Administrative Agent or Collateral Agent), the Co-Agent and their respective
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or affiliates for services in
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connection with this Agreement or otherwise without having to account for the
same to the Lenders.
11.5. Indemnification. The Lenders agree to indemnify the Agents and
each of them (to the extent not reimbursed under Section 12.9 hereof, but
without limiting the obligations of the Borrower under such Section) ratably in
accordance with their respective Revolving Credit Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including attorneys' fees), or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Agents or either of them (including by any Lender) in any way
relating to or arising out of any Loan Document or the transactions
contemplated thereby or any action taken or omitted by the Agents under any
Loan Document; provided that no Lender shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Agents promptly upon demand for its ratable share of
any costs or expenses payable by the Borrower under Section 12.5, to the extent
that the Agents are not promptly reimbursed for such costs and expenses by the
Borrower. The agreements contained in this Section 11.5 shall survive payment
in full of the Loans and all other amounts payable under this Agreement.
11.6. Non-Reliance on Agents and Other Lenders. Each Lender agrees
that it has, independently and without reliance on the Agents, NMS or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Loan Parties and their
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agents, NMS or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lenders by
the Agents hereunder, the Agents shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition, or business of any Credit Party or any of its Subsidiaries
or affiliates that may come into the possession of the Agents or any of their
affiliates.
11.7. Resignation of Agent. The Administrative Agent or the Collateral
Agent may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent or the Collateral Agent, as the
case may be, with the consent of the Borrower (provided that there is not then
a Default or Event of Default), which consent will not be unreasonably
withheld. If no successor Administrative Agent or Collateral Agent, as the case
may be, shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring
Administrative Agent's or Collateral Agent's giving of notice of resignation,
then the retiring Administrative Agent or Collateral Agent, as the case may be,
may, on behalf of the Lenders, appoint a successor Administrative Agent or
Collateral Agent, as the case may be, which shall be a commercial bank
organized under the laws of the United States of America having combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
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appointment as Administrative Agent or Collateral Agent, as the case may be,
hereunder by a successor, such successor shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges, and duties of the
retiring Administrative Agent or Collateral Agent, as the case may be, and the
retiring Administrative Agent or Collateral Agent, as the case may be, shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's or Collateral Agent's resignation hereunder as
Administrative Agent or Collateral Agent, as the case may be, the provisions of
this Article XI shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent or Collateral Agent.
11.8. Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article V) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment expressly provided hereunder to be distributed on other than a pro rata
basis and payments pursuant to Article V), then (a) such Lender shall be deemed
to have simultaneously purchased from the other Lenders a share in their
Obligations so that the amount of the Obligations held by each of the Lenders
shall be pro rata and (b) such other adjustments shall be made from time to
time as shall be equitable to insure that the Lenders share such payments
ratably; provided, however, that for purposes of this Section 11.8 the term
"pro rata" shall be determined with respect to the Revolving Credit Commitment
of each Lender and to the Total Revolving Credit Commitments after subtraction
in each case of amounts, if any, by which any such Lender has not funded its
share of the outstanding Loans and Obligations. If all or any portion of any
such excess payment is thereafter recovered from the Lender which received the
same, the purchase provided in this Section 11.8 shall be rescinded to the
extent of such recovery, without interest. The Borrower expressly consents to
the foregoing arrangements and agrees that each Lender so purchasing a portion
of the other Lenders' Obligations may exercise all rights of payment
(including, without limitation, all rights of set-off, banker's lien or
counterclaim) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
11.9. Fees. The Borrower agrees to pay to the Administrative Agent,
for its individual account, an annual Administrative Agent's fee as from time
to time agreed to by the Borrower and Administrative Agent in writing.
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ARTICLE XII
Miscellaneous
12.1. Assignments and Participations. (a) Each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Loans, its Note, and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this Agreement,
any such partial assignment shall be in an amount at least equal to $5,000,000
or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under this
Agreement and the Note; and
(iv) the parties to such assignment shall execute and deliver
to the Administrative Agent for its acceptance an Assignment and Acceptance in
the form of Exhibit B hereto, together with any Note subject to such assignment
and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder
and the assigning Lender shall, to the extent of such assignment, relinquish
its rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the assignee. If
the assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Borrower and the Administrative
Agent certification as to exemption from deduction or withholding of Taxes in
accordance with Section 5.6.
(b) The Administrative Agent shall maintain at its address referred
to in Section 12.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Revolving Credit Commitment of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
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(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(d) Each Lender may sell participations to one or more Persons in
all or a portion of its rights, obligations or rights and obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment
or its Loans); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the benefit of the
yield protection provisions contained in Article V and the right of set-off
contained in Section 12.3, and (iv) the Borrower shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
to enforce the obligations of the Borrower relating to its Loans and its Note
and to approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such Loans
or Note, extending any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Note, or extending its Revolving Credit
Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans
and its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower
or any of its Subsidiaries in the possession of such Lender from time to time
to assignees and participants (including prospective assignees and
participants).
12.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such address, telefacsimile
number or telex number as may from time to time be specified by such party in
written notice to the other parties hereto or otherwise received), in the case
of notice by telegram, telefacsimile or telex, respectively (where the receipt
of such message is verified by return), or (iii) on the fifth Business Day
after the day on which mailed, if sent prepaid by certified or registered mail,
return receipt requested, in each case delivered, transmitted or mailed, as the
case may be, to the address, telex number or telefacsimile number, as
appropriate, set forth below or such other address or number as such party
shall specify by notice hereunder:
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(a) if to the Borrower:
AMERISTEEL CORPORATION
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(b) if to the Administrative Agent:
NationsBank, National Association
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
NationsBank, National Association
000 Xxxxx Xxxxxx Xxxxx,0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Corporate Finance
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to the Collateral Agent:
The Bank of Tokyo-Mitsubishi, Ltd
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxx
Telephone: (212) ___-____
Telefacsimile: (212) ___-____
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(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment and
Acceptance;
(e) if to any other Credit Party, at the address set forth
on the signature page of the Facility Guaranty or
Security Instrument executed by such Credit Party, as
the case may be.
12.3. Right of Set-off; Adjustments. (a) Upon the occurrence and
during the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 12.3 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive
any payment of all or part of the Loans owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, or otherwise), in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in respect of
such other Lender's Loans owing to it, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans owing to it, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender or
thereafter is repaid in good faith settlement of a pending or threatened
avoidance claim, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Borrower agrees that any Lender so purchasing a participation from a Lender
pursuant to this Section 12.3 may, to the fullest extent permitted by law,
exercise all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Person were the direct
creditor of the Borrower in the amount of such participation.
12.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in
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full force and effect so long as any of Obligations remain outstanding or any
Lender has any Eurodollar Rate Loan hereunder or the Borrower has continuing
obligations hereunder unless otherwise provided herein. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and permitted assigns of such party and all
covenants, provisions and agreements by or on behalf of the Borrower which are
contained in the Loan Documents shall inure to the benefit of the successors
and permitted assigns of the Lenders or any of them.
12.5. Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agents in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agents (excluding the cost of internal counsel) with respect
thereto and with respect to advising the Agents as to their respective rights
and responsibilities under the Loan Documents. The Borrower further agrees to
pay on demand all costs and expenses of the Agents and the Lenders, if any
(including, without limitation, reasonable attorneys' fees and expenses but
excluding the cost of internal counsel), in connection with the restructuring,
workout or enforcement (whether through negotiations, legal proceedings, or
otherwise) of the Loan Documents and the other documents to be delivered
hereunder.
12.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article XI or the rights or duties of the Agents are affected thereby,
by the Agents); provided that no such amendment or waiver shall, unless signed
by all the Lenders, (i) increase the Total Revolving Credit Commitment of the
Lenders, (ii) reduce the principal of or rate of interest on any Loan or any
fees or other amounts payable hereunder, (iii) postpone any date fixed for the
payment of any principal of or interest on any Loan or any fees or other
amounts payable hereunder or for termination of any Revolving Credit
Commitment, or (iv) change the percentage of the Revolving Credit Commitment or
of the unpaid principal amount of the Notes, or the number of Lenders, which
shall be required for the Lenders or any of them to take any action under this
Section 12.6 or any other provision of this Agreement or (v) release any
Guarantor or, other than in connection with a transaction permitted under
Section 9.6, all or a material part of the Collateral or (vi) change any
provision of this Agreement or the other Loan Documents relating to the pro
rata treatment of Lenders; and provided, further, that no such amendment or
waiver that affects the rights, privileges or obligations of NationsBank as
provider of Swing Line Loans, shall be effective unless signed in writing by
NationsBank or that affects the rights, privileges or obligations of the
Issuing Bank as issuer of Letters of Credit, shall be effective unless signed
in writing by the Issuing Bank;
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agents' part in exercising any
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right, remedy or option shall operate as a waiver of such or any other right,
remedy or option or of any Default or Event of Default.
12.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully- executed counterpart.
12.8. Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agents or any obligation of the
Borrower, the Lenders or the Agents, arising prior to the effective date of
such termination, and the provisions hereof shall continue to be fully
operative until all transactions entered into or rights created or obligations
incurred prior to such termination have been fully disposed of, concluded or
liquidated and the Obligations arising prior to or after such termination have
been irrevocably paid in full. The rights granted to the Agents for the benefit
of the Lenders under the Loan Documents shall continue in full force and
effect, notwithstanding the termination of this Agreement, until all of the
Obligations have been paid in full after the termination hereof (other than
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable, which shall continue) or the Borrower has
furnished the Lenders and the Agents with an indemnification satisfactory to
the Agents and each Lender with respect thereto. All representations,
warranties, covenants, waivers and agreements contained herein shall survive
termination hereof until payment in full of the Obligations unless otherwise
provided herein. Notwithstanding the foregoing, if after receipt of any payment
of all or any part of the Obligations, any Lender is for any reason compelled
to surrender or in good faith settlement of a pending or threatened avoidance
claim voluntarily surrenders, such payment to any Person because such payment
is determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Agents or such Lender harmless for, the amount of such payment surrendered
until the Agents or such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agents or
the Lenders in reliance upon such payment, and any such contrary action so
taken shall be without prejudice to the Agents' or the Lenders' rights under
this Agreement and shall be deemed to have been conditioned upon such payment
having become final and irrevocable.
12.9. Indemnification; Limitation of Liability. (a) The Borrower
agrees to indemnify and hold harmless the Agents, NMS, and each Lender and each
of their affiliates and their respective officers, directors, employees,
agents, and advisors (each, an "Indemnified Party") from and against any and
all claims, damages, losses, liabilities, costs, and expenses (including,
without limitation, reasonable attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans,
except to the
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extent such claim, damage, loss, liability, cost, or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section 12.9 applies, such indemnity shall be effective
whether or not such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified Party or
any other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it, any of its
Subsidiaries, any Guarantor, or any security holders or creditors thereof
arising out of, related to or in connection with the transactions contemplated
herein, except to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to have directly
resulted from such Indemnified Party's gross negligence or willful misconduct.
The Borrower agrees not to assert any claim against the Agents, any Lender, any
of their affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 12.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
12.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more
of the parties hereto, then such provision shall remain in effect with respect
to all parties, if any, as to whom such provision is neither illegal nor
invalid, and in any event all other provisions hereof shall remain effective
and binding on the parties hereto.
12.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, Eurodollar Rate Loans and other communications between or
among the parties, both oral and written, with respect thereto.
12.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of
this Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate
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until the total amount of interest due hereunder equals the amount of interest
which would have been due hereunder if the stated rates of interest set forth
in this Agreement had at all times been in effect. In addition, if when the
Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to
the extent permitted by law, the Borrower shall pay to the Administrative Agent
an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
the Lenders and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be canceled automatically and, if previously paid,
shall at such Lender's option be applied to the outstanding amount of the Loans
made hereunder or be refunded to the Borrower. As used in this paragraph, the
term "Highest Lawful Rate" means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to such Lender which are presently in effect or, to
the extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
12.14. Payments. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Administrative Agent at the Principal Office in Dollars and in
immediately available funds, without setoff, deduction or counterclaim. Subject
to the definition of "Interest Period" herein, whenever any payment under this
Agreement or any other Loan Document shall be stated to be due on a day that is
not a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time in such case shall be included in the
computation of interest and fees, as applicable, and as the case may be.
12.15. Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF HILLSBOROUGH, STATE OF FLORIDA, UNITED STATES OF AMERICA AND,
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101
BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER
EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND
ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND THE BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH
SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY
OF THE BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH
PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
AMERISTEEL CORPORATION
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxx X. Xxxx
-------------------------------- ---------------------------------------
Name: Xxxxxx X. Xxxx
/s/ Xxxxxx Xxxxxxxxxx Title: Assistant Treasurer
--------------------------------
103
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent for the Lenders
By:/s/ Miles X. Xxxxxxx III
-------------------------------------------
Name: Miles X. Xxxxxxx III
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
By:/s/ Miles X. Xxxxxxx III
-------------------------------------------
Name: Miles X. Xxxxxxx III
Title: Senior Vice President
Lending Office for Base Rate Loans:
NationsBank, National Association
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
NationsBank, National Association
ABA#000000000
Account No.:_________________________
Reference: AmeriSteel Corporation
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
NationsBank, National Association
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
NationsBank, National Association
ABA#000000000
Account No.: ________________________
Reference: AmeriSteel Corporation
Attention: Agency Services
104
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH,
as Collateral Agent and Documentation Agent for the Lenders
By:/s/ X. Xxxxxxx
-------------------------------------------------------
Name: X. Xxxxxxx
-----------------------------------------------------
Title: SVP & Manager
----------------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By:/s/ X. Xxxxxxx
-------------------------------------------------------
Name: X. Xxxxxxx
-----------------------------------------------------
Title: SVP & Manager
----------------------------------------------------
Lending Office:
1251 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wire Transfer Instructions:
The Bank of Tokyo-Mitsubishi, Ltd.
New York, New York
ABA #0000-0000-0
Account #00000000
Attention: Xxxxxxx LOD
Reference: AmeriSteel Corporation
105
FIRST UNION NATIONAL BANK,
as Co-Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------------
Title: Vice President
--------------------------------------------
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------------
Title: Vice President
--------------------------------------------
Lending Office:
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wire Transfer Instructions:
First Union National Bank
Charlotte, North Carolina
ABA #000000000
Account #465906-0000000
Attention: Diversified Industries
Reference: AmeriSteel Corporation
106
SUNTRUST BANK, TAMPA BAY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------------
Title: Vice President
-------------------------------------------
Lending Office:
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SunTrust Bank, Tampa Bay
Tampa, Florida
ABA #000000000
Account #9656004210
Attention: Commercial Loan Operations
For Further Credit to: AmeriSteel Corporation
107
AMSOUTH BANK
By: s/ Xxxxxx X. Xxxxxxx
--------------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------------------
Title: Vice President
-----------------------------------------------------
Lending Office:
000 X. Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
AmSouth Bank
Tampa, Florida
ABA #000000000
Reference: Commercial Loan - AmeriSteel Corporation
Upon receipt, call Xxxxxx Xxxxxx, Commercial Banking/Tampa
(000) 000-0000
108
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------------------
Title: Vice President
--------------------------------------------
Lending Office:
One PNC Plaza, 3rd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Wire Transfer Instructions:
PNC Bank, N.A.
Pittsburgh, Pennsylvania
ABA #000000000
Account #196030890
Attention: Commercial Loans
Reference: AmeriSteel Corporation
109
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxx
---------------------------------------------
Title: Group Vice President
--------------------------------------------
Lending Office:
000 0xx Xxxxxx, Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SouthTrust Bank, National Association
Birmingham, Alabama
ABA #000000000
Account #131009
Reference: AmeriSteel Corporation
Attention: Xxxxxx Xxxxxxxx
(000) 000-0000 (upon receipt)
110
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
---------------------------------------------
Title: General Manager
--------------------------------------------
Lending Office:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
Chase Manhattan Bank
New York, New York
ABA #000000000
Account of: The Sumitomo Trust & Banking Co., Ltd.
New York Branch A/C #000-0-000000
Reference: AmeriSteel Corporation
111
COMERICA BANK
By: /s/ Xxxxxx X. XxXxxxx
--------------------------------------------
Name: Xxxxxx X. XxXxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
Lending Office:
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
Comerica Bank
Detroit, Michigan
ABA #000000000
Account #02 21585 90010
Attention: Xxxxxx Xxxxx
Reference: AmeriSteel Corporation
112
EXHIBIT A
Applicable Commitment Percentages
Applicable
Revolving Credit Commitment
Lender Commitment Percentage
------ ---------------- -----------
NationsBank, National
Association $ 25,000,000.00 16.00000000%
The Bank of Tokyo-Mitsubishi, 22,500,000.00 15.00000000%
Ltd.
First Union National Bank 22,500,000.00 15.00000000%
SunTrust Bank, Tampa Bay 20,000,000.00 13.00000000%
AmSouth Bank 12,500,000.00 8.00000000%
PNC Bank, National Association 12,500,000.00 8.33333333%
SouthTrust Bank, National
Association 12,500,000.00 8.33333333%
The Sumitomo Trust & Banking
Co., Ltd., New York Branch 12,500,000.00 8.00000000%
Comerica Bank 10,000,000.00 6.66666667%
--------------- -----------
$150,000,000.00 100%
A-1
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EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Amended and Restated Credit Agreement dated as of July
14, 1998 (the "Credit Agreement") among AmeriSteel Corporation, a Florida
corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement)
and NationsBank , National Association, as administrative agent for the Lenders
(the "Administrative Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Eurodollar Rate Loan and the amount of the Loans owing to the Assignee will be
as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other instrument
or document furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Credit Party or the performance or observance by any Credit Party of any
of its obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Note held by the Assignor and
requests that the Administrative Agent exchange such Note for new Notes payable
to the order of the Assignee in an amount equal to the Revolving Credit
Commitment assumed by the Assignee pursuant hereto and to the Assignor in an
amount equal to the Revolving Credit Commitment retained by the Assignor, if
any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 8.1 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agents, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agents to take such action as agent on its behalf
and
B-1
114
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agents by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and
(vi) attaches any U.S. Internal Revenue Service or other forms required under
Section 5.6.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1.
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Florida .
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
115
Schedule 1
Percentage interest assigned: ________%
Assignee's Commitment: $_______
Aggregate outstanding principal amount
of Loans assigned: $_______
Principal amount of Note payable to Assignee: $_______
Principal amount of Note payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Administrative Agent): *_______, 19__
[NAME OF ASSIGNOR], as Assignor
By:
-------------------------------------
Title:
Dated: , 19
-------------------- ---
[NAME OF ASSIGNEE], as Assignee
By:
-------------------------------------
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
B-3
116
Accepted [and Approved] **
this ___ day of ___________, 19 _
NATIONSBANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Title:
[Approved this ____ day
of ____________, 19__
AMERISTEEL CORPORATION
By: ]**
-----------------------------------
Title:
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
B-4
117
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Amended and Restated Credit
Agreement dated as of July 14, 1998 (the "Agreement") among AmeriSteel
Corporation, a Florida corporation (the "Borrower"), the Lenders (as defined in
the Agreement), and NationsBank, National Association, as Administrative Agent
for the Lenders ("Administrative Agent"). Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower hereby nominates, constitutes and appoints each
individual named below as an Authorized Representative under the Loan
Documents, and hereby represents and warrants that (i) set forth opposite each
such individual's name is a true and correct statement of such individual's
office (to which such individual has been duly elected or appointed), a genuine
specimen signature of such individual and an address for the giving of notice,
and (ii) each such individual has been duly authorized by the Borrower to act
as Authorized Representative under the Loan Documents:
Name and Address Office Specimen Signature
------------------------ ------------------------ -----------------------------
------------------------
------------------------
------------------------ ------------------------ -----------------------------
------------------------
------------------------
Borrower hereby revokes (effective upon receipt hereof by the Administrative
Agent) the prior appointment of ______________ as an Authorized Representative.
This the ___ day of __________________, 19__.
AMERISTEEL CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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118
EXHIBIT D-1
Form of Borrowing Notice
To: NationsBank, National Association,
as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000)000-0000
Reference is hereby made to the Amended and Restated Credit
Agreement dated as of July 14, 1998 (the "Agreement") among AmeriSteel
Corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
NationsBank, National Association, as Administrative Agent for the Lenders
("Administrative Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives
notice to the Administrative Agent that Loans of the type and amount set forth
below be made on the date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $2,000,000 or if greater an integral multiple of $500,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
The Borrower hereby requests that the proceeds of Loans described
in this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions] .
The undersigned hereby certifies that:
D-1
119
1. No Default or Event of Default exists either now or after
giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article
VII of the Agreement and in the Loan Documents (other than those expressly
stated to refer to a particular date) are true and correct as of the date
hereof except that the reference to the financial statements in Section 7.6(a)
of the Agreement are to those financial statements most recently delivered to
you pursuant to Section 8.1 of the Agreement (it being understood that any
financial statements delivered pursuant to Section 8.1(b) have not been
certified by independent public accountants) and attached hereto are any
changes to the Schedules referred to in connection with such representations
and warranties.
3. All conditions contained in the Agreement to the making of
any Loan requested hereby have been met or satisfied in full .
AMERISTEEL CORPORATION
BY:
----------------------------------------
Authorized Representative
DATE:
--------------------------------------
X-0
000
XXXXXXX X-0
Form of Borrowing Notice--Swing Line Loans
To: NationsBank, National Association,
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000)000-0000
Reference is hereby made to the Amended and Restated Credit
Agreement dated as of July 14, 1998 (the "Agreement") among AmeriSteel
Corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
NationsBank, National Association, as Administrative Agent for the Lenders
("Administrative Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives
notice to NationsBank that a Swing Line Loan of the amount set forth below be
made on the date indicated:
Interest Rate (check one) Amount(1) Date of Loan
------------------------- --------- ------------
Base Rate _________ __________, ____
Adjusted Federal
Funds Rate _________ __________, ____
-----------------------
(1) Must be $100,000 or if greater an integral multiple of $10,000, unless
a Base Rate Refunding Loan.
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as
follows: [insert transmittal instructions].
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VII
of the Agreement and in the Loan Documents (other than those expressly stated
to refer to a particular date) are true and correct as of the date hereof
except that the reference to the financial statements in Section 7.6(a) of the
Agreement are to those financial statements most recently delivered to you
pursuant to Section 8.1 of the Agreement (it being understood that any
financial statements delivered pursuant
D-2-1
121
to Section 8.1(b) have not been certified by independent public accountants)
and attached hereto are any changes to the Schedules referred to in connection
with such representations and warranties.
3. All conditions contained in the Agreement to the making of any
Loan requested hereby have been met or satisfied in full.
AMERISTEEL CORPORATION
BY:
------------------------------------------
Authorized Representative
DATE:
---------------------------------------
D-2-2
122
EXHIBIT E
Form of Interest Rate Selection Notice
To: NationsBank, National Association,
as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of July 14, 1998 (the "Agreement") among AmeriSteel Corporation (the
"Borrower"), the Lenders (as defined in the Agreement), and NationsBank,
National Association, as Administrative Agent for the Lenders ("Administrative
Agent"). Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Administrative Agent of the following selection of a type of Loan and
Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
------------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $2,000,000 or if greater an integral multiple of $500,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
AMERISTEEL CORPORATION
BY:
-------------------------------------
Authorized Representative
DATE:
-----------------------------------
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EXHIBIT F-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$______________ Charlotte, North Carolina
______ __, 1998
FOR VALUE RECEIVED, AMERISTEEL CORPORATION, a Florida corporation
having its principal place of business located in Tampa, Florida (the
"Borrower"), hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION, as
administrative agent for the Lenders (the "Administrative Agent"), located at
One Independence Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000 (or at such other place or places as the Administrative
Agent may designate in writing) at the times set forth in the Amended and
Restated Credit Agreement dated as of July 14, 1998 among the Borrower, the
financial institutions party thereto (collectively, the "Lenders") and the
Agents (the "Agreement" -- all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement), in lawful money
of the United States of America, in immediately available funds, the principal
amount of ___________ DOLLARS ($__________) or, if less than such principal
amount, the aggregate unpaid principal amount of all Revolving Loans made by
the Lender to the Borrower pursuant to the Agreement on the Revolving Credit
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Article II of the Agreement. All or any portion of the
principal amount of Loans may be prepaid or required to be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.2 (a) of the Agreement.
Further, in the event of such acceleration, this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees,
and interest due hereunder thereon at the rates set forth above.
F-1-1
124
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security
of the Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Revolving Loans evidenced
hereby were or are made and are to be repaid. This Revolving Note is subject to
certain restrictions on transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issues against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be had against any of them, also
their right, if any, to require the holder hereof to hold as security for this
Revolving Note any collateral deposited by any of said Persons as security.
Protest, notice of protest, notice of dishonor, diligence or any other
formality are hereby waived by all parties bound hereon.
THIS REVOLVING NOTE AND OTHER REVOLVING NOTES OF EVEN DATE ARE GIVEN
IN SUBSTITUTION AND NOT PAYMENT OF REVOLVING NOTES OF THE BORROWER DATED JUNE
9, 1995 ISSUED PURSUANT TO A CREDIT AGREEMENT DATED JUNE 9, 1995, AS AMENDED.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
AMERISTEEL CORPORATION
WITNESS:
By:
-------------------------------- ------------------------------------
Name:
---------------------------------
Title:
------------------------------- --------------------------------
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125
EXHIBIT F-2
Form of Swing Line Note
Swing Line Note
$15,000,000 ______,_______________
______ ___, 199_
FOR VALUE RECEIVED, AMERISTEEL CORPORATION (the "Borrower") hereby
promises to pay to NATIONSBANK, NATIONAL ASSOCIATION or its assigns (the
"Lender"), in its individual capacity, at the office of NATIONSBANK, NATIONAL
ASSOCIATION, as administrative agent for the Lenders (the "Administrative
Agent"), located at One Independence Center, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or
places as the Administrative Agent may designate in writing) at the times set
forth in the Amended and Restated Credit Agreement dated as of July 14, 1998
among the Borrower, the financial institutions party thereto (collectively, the
"Lenders") and the Administrative Agent (as amended and supplemented and in
effect from time to time, the "Agreement" -- all capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Agreement), in lawful money of the United States of America, in immediately
available funds, the lesser of (i) the principal amount of FIFTEEN MILLION
DOLLARS ($15,000,000) or (ii) if less than such principal amount, the aggregate
unpaid principal amount of all Swing Line Loans made by the Lender to the
Borrower pursuant to the Agreement on the Revolving Credit Termination Date or
such earlier date as may be required pursuant to the terms of the Agreement,
and to pay interest from the date hereof on the unpaid principal amount hereof,
in like money, at said office, on the dates and at the rates provided in
Article II of the Agreement. All or any portion of the principal amount of
Loans may be prepaid or may be required to be prepaid as provided in the
Agreement.
If payments of all sums due hereunder is accelerated under the terms
of the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
rates per annum set forth in the proviso to Section 2.2(a) of the Agreement.
Further, in the event of such acceleration, this Note shall become immediately
due and payable, without presentation, demand, protest or notice of any kind,
all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees,
and interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-2-1
126
This Note is the Swing Line Note in the aggregate principal amount of
$15,000,000 referred to in the Agreement and is issued pursuant to and entitled
to the benefits and security of the Agreement to which reference is hereby made
for a more complete statement of the terms and conditions upon which the Swing
Line Loans evidence hereby were or are made and are to be repaid. This Note is
subject to certain restrictions on transfer or assignment as provided in the
Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby
waive to the full extent permitted by law the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any other of them on account of liability hereon until
judgment be obtained and execution issues against any other of them and
returned satisfied or until it can be shown that the maker or any other party
hereto had no property available for the satisfaction of the debt evidenced by
this instrument, or until any other proceedings can be had against any of them,
also their right, if any, to require the holder hereof to hold as security for
this Note any collateral deposited by any of said Persons as security. Protest,
notice of protest, notice of dishonor, diligence or any other formality are
hereby waived by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this Swing Line Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, pursuant to authority duly granted.
AMERISTEEL CORPORATION
By:____________________________________
Name:__________________________________
Title:_________________________________
F-2-2
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EXHIBIT G
Form of Opinion of Borrower's Counsel
See attached.
G-1
128
EXHIBIT H
Compliance Certificate
NationsBank, National Association,
as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
NationsBank, National Association,
as Agent
000 Xxxxx Xxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Corporate Finance Department
Telefacsimile: (000) 000-0000
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of July 14, 1998 (the "Agreement") among AmeriSteel Corporation, (the
"Borrower"), the Lenders (as defined in the Agreement) and NationsBank,
National Association, as Administrative Agent for the respective meanings
therefore set forth in the Agreement. The undersigned, a duly authorized and
acting Authorized Representative, hereby certifies to you as of _______ (the
"Determination Date") as follows:
I. COMPLIANCE WITH CERTAIN FINANCIAL COVENANTS
Computations showing compliance with Sections 9.1(a), (b), (c), 9.3,
9.5(h) and 9.9 are set forth on Schedule I hereto and incorporated herein by
this reference.
II. NO DEFAULT OR EVENT OF DEFAULT
A. Since _____________ (the date of the similar
certification), (a) the Borrower has not defaulted
in the keeping, observance, performance or
fulfillment of its obligations pursuant to any of
the Loan Documents; and (b) no Default or Event of
Default specified in Article X of the Agreement has
occurred and is continuing.
B. If a Default or Event of Default has occurred since
______________ (the date of the last similar
certification), the Borrower proposes to take the
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129
following action with respect to such Default of
Event of Default:_____________________.
(Note if no Default or Event of Default occurred, insert "Not Applicable").
The Determination Date is the Date of the last required financial
statement submitted to the Lenders in accordance with Section 8.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this ____ day of ____,
199_.
By:
----------------------------------------
Authorized Representative
Name:
--------------------------------------
Title:
-------------------------------------
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130
---------------------------------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/98
Schedule 1:
Financial Covenant Analyses
(Dollar amounts in thousands) QTR ENDING QTR ENDING QTR ENDING QTR 4 QUARTERS
9/30/97 12/31/97 3/31/98 ENDING ENDING 6/30/98
6/30/98
---------------------------------------------------------------------------------------------------------------------------------
SECTION 9.1(a)
---------------------------------------------------------------------------------------------------------------------------------
CONSOLIDATED EBITDA
CONSOLIDATED NET INCOME X X X X X
NET INCOME (PER FINANCIAL STMNTS) X X X X X
PLUS: AFTER-TAX LOSS ON SALE OF ASSETS X X X X X
LESS: AFTER-TAX GAIN ON SALE OF ASSETS X X X X X
OTHER ADJUSTMENTS X X X X X
------------ ------------ ------------ ----------- ------------
CONSOLIDATED NET INCOME (LOSS) X X X X X
CONSOLIDATED INTEREST EXPENSE X X X X X
TAXES X X X X X
AMORTIZATION X X X X X
DEPRECIATION X X X X X
PLUS: OTHER NON-CASH CHARGES X X X X X
LESS: OTHER NON-CASH CREDITS X X X X X
------------ ------------ ------------ ---------- ------------
CONSOLIDATED EBITDA X X X X X
CONSOLIDATED EBITDA ROLLING 4 QUARTERS X
CONSOLIDATED INDEBTEDNESS X
REVOLVER OUTSTANDINGS X
LETTERS OF CREDIT OUTSTANDING X
IRBs X
SENIOR NOTES DUE 2008 X
SUBORDINATED INTERCOMPANY NOTES X
OTHER INDEBTEDNESS X
X
------------ ------------ ----------- ---------- -----------
CONSOLIDATED INDEBTEDNESS X
RATIO: CONSOLIDATED INDEBTEDNESS/ CONSOLIDATED
EBITDA X
COVENANT 3.75
VARIANCE FAVORABLE (UNFAVORABLE) X
COMPLIANCE STATUS ____X___YES _________NO
---------------------------------------------------------------------------------------------------------------------------------
H-3
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----------------------------------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/98
Schedule 1:
Financial Covenant Analyses
(Dollar amounts in thousands) QTR ENDING QTR ENDING QTR ENDING QTR 4 QUARTERS
9/30/97 12/31/97 3/31/98 ENDING ENDING 6/30/98
6/30/98
----------------------------------------------------------------------------------------------------------------------------------
SECTION 9.1 (b)
CONSOLIDATED NET WORTH
COVENANT
$155,000 $155,000
PLUS: 50% OF CONSOLIDATED NET INCOME X
PLUS: 75% OF NET PROCEEDS OF EQUITY OFFERINGS X
----------------
COVENANT X
ACTUAL CONSOLIDATED NET WORTH (PER FINANCIAL
STMTS.) X
VARIANCE FAVORABLE (UNFAVORABLE) X
COMPLIANCE STATUS ___X___ YES ________NO
SECTION 9.1 (c)
CASH INTEREST EXPENSE
INTEREST EXPENSE (SEE FINANCIAL STATEMENTS) X X X X
LESS NON CASH EXPENSE X X X X
CASH INTEREST EXPENSE X X X X X
CASH INTEREST EXPENSE ROLLING FOUR QUARTERS X
RATIO: CONSOLIDATED EBITDA/CASH INTEREST EXPENSE X
COVENANT 2.75
VARIANCE FAVORABLE (UNFAVORABLE) X
__X____YES _______NO
COMPLIANCE STATUS
SECTION 9.3
CAPITAL EXPENDITURES
COVENANT
$35,000 $35,000
PLUS: ALLOWABLE CARRY-OVER (NOT TO EXCEED
$7,500 IN ANY CASE NOT TO EXCEED $50,000 IN ANY FISCAL
YEAR) X
----------------
COVENANT X
ACTUAL CAPITAL EXPENDITURES X
VARIANCE FAVORABLE (UNFAVORABLE) X
__X___ YES ________NO
COMPLIANCE STATUS
SECTION 9.5(h)
OTHER INDEBTEDNESS
COVENANT
20% OF CONSOLIDATED TANGIBLE ASSETS X
OTHER INDEBTEDNESS X
VARIANCE FAVORABLE (UNFAVORABLE) X
__X____YES _______NO
COMPLIANCE STATUS
---------------------------------------------------------------------------------------------------------------------------------
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---------------------------------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/98
Schedule 1:
Financial Covenant Analyses
(Dollar amounts in thousands) QTR ENDING QTR ENDING QTR ENDING QTR 4QUARTERS
9/30/97 12/31/97 3/31/98 ENDING ENDING 6/30/98
6/30/98
---------------------------------------------------------------------------------------------------------------------------------
SECTION 9.9
---------------------------------------------------------------------------------------------------------------------------------
RESTRICTED PAYMENTS
a) AMOUNT OF CASH DIVIDENDS PAID TO FLS FOR TAX
PURPOSES X
COVENANT $500
COMPLIANCE STATUS __X__ YES ________NO
b) AMOUNT OF CASH DIVIDENDS PAID ON BORROWERS
COMMON STOCK X
COVENANT
$5,000 $5,000
PLUS: 50% OF CUMULATIVE CONSOLIDATED NET
INCOME X
---------------
COVENANT X
COMPLIANCE STATUS __X____YES _________NO
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/98
Schedule 2:
Tier Leverage Ratio LIBOR + Alternate Base Rate + Commitment Fee
---------------------------------------------------------------------------------------------------------
VI >3.5 1.50% 0.50% 0.38%
---------------------------------------------------------------------------------------------------------
VI >3.0 1.25% 0.25% 0.25%
---------------------------------------------------------------------------------------------------------
IV >2.5 1.00% 0.00% 0.23%
---------------------------------------------------------------------------------------------------------
III >2.0 0.75% 0.00% 0.20%
---------------------------------------------------------------------------------------------------------
II >1.5 0.63% 0.00% 0.18%
---------------------------------------------------------------------------------------------------------
I >1.0 0.50% 0.00% 0.18%
---------------------------------------------------------------------------------------------------------
ACTUAL X X X X
---------------------------------------------------------------------------------------------------------
RATE CHANGE
STATUS (RATE CHANGE) TIER 3
---------------------------------------------------------------------------------------------------------
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EXHIBIT I
Form of Facility Guaranty
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement" or this
"Guaranty"), dated as of __________, ____, is made by THE UNDERSIGNED (the
"Guarantor") to NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States, as
Administrative Agent (the "Administrative Agent") for each of the lenders (the
"Lenders" and collectively with the Administrative Agent the "Secured Parties")
now or hereafter party to the Credit Agreement (as defined below). All
capitalized terms used but not otherwise defined herein shall have the meaning
ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have provided to AMERISTEEL CORPORATION
(the "Borrower") a revolving credit facility pursuant to the Amended and
Restated Credit Agreement dated as of July 14, 1998 among the Borrower, the
Administrative Agent, The Bank of Tokyo-mitsubishi, Ltd., as Collateral Agent,
and the Lenders (as from time to time amended, revised, modified, supplemented
or amended and restated, the "Credit Agreement"); and
WHEREAS, the Guarantor is a new Subsidiary of the Borrower and is
therefore required to enter into this Guaranty pursuant to Section 8.19 of the
Credit Agreement; and
WHEREAS, as a condition to entering into the Credit Agreement and
making and continuing to make any loans or advances thereunder, the Guarantor
is required to guarantee to the Secured Parties payment of the Borrower's
Obligations in accordance with the terms of this Agreement; and
WHEREAS, the Guarantor will materially benefit from the loans and
advances made under the Credit Agreement, and the Guarantor is willing to enter
into this Guaranty to provide an inducement for the Secured Parties to continue
to make loans and advances under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Guarantor hereby agrees as follows:
1. GUARANTY. The Guarantor hereby unconditionally, absolutely,
continually and irrevocably guarantees to the Secured Parties the payment and
performance in full of the Borrower's Liabilities (as defined below). For all
purposes of this Guaranty Agreement, "Borrower's Liabilities" means: (a) the
Borrower's prompt payment in full, when due or declared due and at all such
times, of all Obligations and all other amounts pursuant to the terms of the
Credit Agreement, the Notes, and all other Loan Documents executed in
connection with the Credit Agreement and all Rate
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Hedging Obligations heretofore, now or at any time or times hereafter owing,
arising, due or payable from the Borrower to the Lenders, including without
limitation principal, interest, premium or fee (including, but not limited to,
loan fees and attorneys' fees and expenses); and (b) the Borrower's prompt,
full and faithful performance, observance and discharge of each and every
agreement, undertaking, covenant and provision to be performed, observed or
discharged by the Borrower under the Credit Agreement and all other Loan
Documents executed in connection therewith and all Swap Agreements. The
Guarantor's obligations to the Secured Parties under this Guaranty Agreement
are hereinafter collectively referred to as the "Guarantors' Obligations";
provided, however, that the liability of the Guarantor individually with
respect to the Guarantors' Obligations shall be limited to an aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provisions of any applicable state law.
The Guarantor agrees that it is directly and primarily liable for the
Borrower's Liabilities.
2. PAYMENT. If the Borrower shall default in payment or performance of
any Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses), or
otherwise, when and as the same shall become due, whether according to the
terms of the Credit Agreement, by acceleration, or otherwise, or upon the
occurrence of any Event of Default under the Credit Agreement that has not been
cured or waived, then the Guarantor will, upon demand thereof by the
Administrative Agent or its successors or assigns AS OF THE DATE OF SUCH
DEMAND, fully pay to the Administrative Agent, for the benefit of the Secured
Parties, subject to any restriction set forth in Section 1 hereof, an amount
equal to all of Guarantors' Obligations then due and owing.
3. UNCONDITIONAL OBLIGATIONS. This is a guaranty of payment and not of
collection. The Guarantors' Obligations under this Guaranty Agreement shall be
joint and several, absolute and unconditional irrespective of the validity,
legality or enforceability of the Credit Agreement, the Notes or any other Loan
Document or any other guaranty of the Borrower's Liabilities, and shall not be
affected by any action taken under the Credit Agreement, the Notes or any other
Loan Document, any other guaranty of the Borrower's Liabilities, or any other
agreement between the Secured Parties and the Borrower or any other Person, in
the exercise of any right or power therein conferred, or by any failure or
omission to enforce any right conferred thereby, or by any waiver of any
covenant or condition therein provided, or by any acceleration of the maturity
of any of the Borrower's Liabilities, or by the release or other disposal of
any security for any of the Borrower's Liabilities, or by the dissolution of
the Borrower or the combination or consolidation of the Borrower into or with
another entity or any transfer or disposition of any assets of the Borrower or
by any extension or renewal of the Credit Agreement, any of the Notes or any
other Loan Document, in whole or in part, or by any modification, alteration,
amendment or addition of or to the Credit Agreement, any of the Notes or any
other Loan Document, any other guaranty of the Borrower's Liabilities, or any
other agreement between the Secured Parties and the Borrower or any other
Person, or by any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which may or might in any manner or to any extent
vary the risks of the Guarantor, or might otherwise constitute a legal or
equitable discharge of a surety or a guarantor; it being the purpose and intent
of the parties hereto that this Guaranty Agreement and the Guarantors,
Obligations hereunder shall be absolute and
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135
unconditional under any and all circumstances and shall not be discharged
except by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. The Guarantor hereby guarantees that
the Guarantors' Obligations will be paid in lawful currency of the United
States of America and in immediately available funds, regardless of any law,
regulation or decree now or hereafter in effect that might in any manner affect
the Borrower's Liabilities, or the rights of the Secured Parties with respect
thereto as against the Borrower, or cause or permit to be invoked any
alteration in the time, amount or manner of payment by the Borrower of any or
all of the Borrower's Liabilities.
5. SUITS. The Guarantor from time to time shall pay to the
Administrative Agent for the benefit of the Secured Parties, on demand, at the
Administrative Agent's place of business set forth in the Credit Agreement or
such other address as the Administrative Agent shall give notice of to the
Guarantor, the Guarantors' Obligations as they become or are declared due, and
in the event such payment is not made forthwith, the Administrative Agent or
the Lenders or any of them may proceed to suit against any one or more or all
of the Guarantors. At the Administrative Agent's election, one or more and
successive or concurrent suits may be brought hereon by the Administrative
Agent against any one or more or all of the Guarantors, whether or not suit has
been commenced against the Borrower, any other guarantor of the Borrower's
Liabilities, or any other Person and whether or not the Secured Parties have
taken or failed to take any other action to collect all or any portion of the
Borrower's Liabilities or have taken or failed to take any actions against any
collateral securing payment or performance of all or any portion of the
Borrower's Liabilities.
6. SET-OFF AND WAIVER. The Guarantor waives any right to assert
against the Secured Parties as a defense, counterclaim, set-off or cross claim,
any defense (legal or equitable) or other claim which the Guarantor may now or
at any time hereafter have against the Borrower or the Secured Parties without
waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to the Guarantor. If at any time hereafter the Secured
Party employs counsel for advice or other representation to enforce the
Guarantors' Obligations that arise out of an Event of Default, then, in any of
the foregoing events, all of the reasonable attorneys' fees arising from such
services and all expenses, costs and charges in any way or respect arising in
connection therewith or relating thereto shall be paid by the Guarantor to the
Administrative Agent, for the benefit of the Secured Parties, on demand.
7. WAIVER; SUBROGATION.
(a) The Guarantor hereby waives notice of the following
events or occurrences: (i) the Administrative Agent's acceptance of
this Guaranty Agreement; (ii) the Lenders' heretofore, now or from
time to time hereafter making Loans and otherwise loaning monies or
giving or extending credit to or for the benefit of the Borrower,
whether pursuant to the Credit Agreement or the Notes or any other
Loan Document or any amendments, modifications, or supplements
thereto, or replacements or extensions thereof; (iii) the Secured
Parties or the Borrower heretofore, now or at any time hereafter,
obtaining, amending, sub stituting for, releasing, waiving or
modifying the Credit Agreement, the Notes or any other Loan Documents;
(iv) presentment, demand, default, non-payment, partial payment and
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protest; (v) any Secured Party heretofore, now or at any time
hereafter granting to the Borrower (or any other party liable to the
Lenders on account of the Borrower's Liabilities) or to any certain
Guarantor any indulgence or extensions of time of payment of the
Borrower's Liabilities or Guarantors' Obligations, respectively; and
(vi) any Secured Party heretofore, now or at any time hereafter
accepting from the Borrower, any other Guarantor, any other guarantor
of the Borrower's Liabilities or any other Person, any partial payment
or payments on account of the Borrower's Liabilities or any collateral
securing the payment thereof or the Administrative Agent settling,
subordinating, compromising, discharging or releasing the same. The
Guarantor agrees that each Secured Party may heretofore, now or at any
time hereafter do any or all of the foregoing in such manner, upon
such terms and at such times as each Secured Party, in its sole and
absolute discretion, deems advisable, without in any way or respect
impairing, affecting, reducing or releasing the Guarantor from the
Guarantors' Obligations, and the Guarantor hereby consents to each and
all of the foregoing events or occurrences.
(b) The Guarantor hereby agrees that payment or performance
by the Guarantor of the Guarantors' Obligations under this Guaranty
Agreement may be enforced by the Administrative Agent on behalf of the
Lenders upon demand by the Administrative Agent to the Guarantor
without the Administrative Agent being required, the Guarantor
expressly waiving any right it may have to require the Administrative
Agent, to (i) prosecute collection or seek to enforce or resort to any
remedies against the Borrower or any other Guarantor or any other
guarantor of the Borrower's Liabilities, or (ii) seek to enforce or
resort to any remedies with respect to any security interests, Liens
or encumbrances granted to the Administrative Agent by the Borrower,
any other Guarantor or any other Person on account of the Borrower's
Liabilities or any guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD,
ACKNOWLEDGED AND AGREED TO BY THE GUARANTOR THAT DEMAND UNDER THIS
GUARANTY AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS
OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER
THE CREDIT AGREEMENT. Neither the Administrative Agent nor any Lender
shall have any obligation to protect, secure or insure any of the
foregoing security interests, Liens or encumbrances on the properties
or interests in properties subject thereto. The Guarantors'
Obligations shall in no way be impaired, affected, reduced, or
released by reason of any Secured Party's failure or delay to do or
take any of the acts, actions or things described in this Guaranty
including, without limiting the generality of the foregoing, those
acts, actions and things described in this Section 7.
(c) The Guarantor further agrees with respect to this
Guaranty that such Guarantor shall have no right of subrogation,
reimbursement or indemnity, nor any right of recourse to security for
the Borrower's Liabilities until the Facility Termination Date.
8. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date hereof and shall continue in full force and effect
until the Facility Termination Date. This Guaranty Agreement shall be binding
upon and inure to the benefit of the Guarantor, the
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Administrative Agent and the Lenders and their respective successors and
assigns. Notwithstanding the foregoing, no Guarantor may, except as provided in
the Credit Agreement, without the prior written consent of the Administrative
Agent, assign any rights, powers, duties or obligations hereunder. Any claim or
claims that the Secured Parties may at any time hereafter have against a
Guarantor under this Guaranty Agreement may be asserted by any Secured Party by
written notice directed to the Guarantor.
9. REPRESENTATIONS AND WARRANTIES. The Guarantor warrants and
represents to the Administrative Agent for the benefit of the Lenders that it
is duly authorized to execute, deliver and perform this Guaranty Agreement,
that this Guaranty Agreement is legal, valid, binding and enforceable against
the Guarantor in accordance with its terms except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles; and that the Guarantor's execution, delivery and
performance of this Guaranty Agreement do not violate or constitute a breach of
its certificate of incorporation or other documents of corporate governance or
any material agreement to which the Guarantor is a party, or any applicable
laws, orders, regulations, decrees or awards of any applicable governmental
authority or arbitral body.
10. EXPENSES. The Guarantor agrees to be liable for the payment of all
reasonable fees and expenses, including attorney's fees, incurred by the
Administrative Agent in connection with the enforcement of this Guaranty
Agreement.
11. REINSTATEMENT. The Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any
time payment received by the Administrative Agent under the Credit Agreement or
this Guaranty Agreement is rescinded or must be restored for any reason or as
repaid in good faith settlement of a pending or threatened avoidance claim.
12. ATTORNEY-IN-FACT. The Guarantor hereby appoints the Administrative
Agent as the Guarantor's attorney-in-fact for the purposes of carrying out the
provisions of this Agreement and taking any action and executing any instrument
which the Administrative Agent may deem necessary or advisable to accomplish
the purposes hereof, which appointment is coupled with an interest and is
irrevocable; provided, that the Administrative Agent shall have and may
exercise rights under this power of attorney only upon the occurrence and
during the continuance of an Event of Default.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the Secured
Parties, and all obligations of the Guarantor hereunder, shall be absolute and
unconditional irrespective of:
(1) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
relating to any of the Guarantors' Obligations;
(2) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guarantors' Obligations, or any
other amendment or waiver of or any
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consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument relating to any of the
Guarantors' Obligations;
(3) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Guarantors'
Obligations; or
(4) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, the Guarantor in respect of
the Guarantors' Obligations or of this Agreement.
14. RELIANCE. The Guarantor represents and warrants to the
Administrative Agent, for the benefit of the Secured Parties, that: (a) the
Guarantor has adequate means to obtain from Borrower, on a continuing basis,
information concerning Borrower and Borrower's financial condition and affairs
and has full and complete access to Borrower's books and records; (b) the
Guarantor is not relying on any Secured Party, its or their employees, agents
or other representatives, to provide such information, now or in the future;
(c) the Guarantor is executing this Guaranty Agreement freely and deliberately,
and understands the obligations and financial risk undertaken by providing this
Guaranty; (d) the Guarantor has relied solely on the Guarantor's own
independent investigation, appraisal and analysis of Borrower and Borrower's
financial condition and affairs in deciding to provide this Guaranty and is
fully aware of the same; and (e) the Guarantor has not depended or relied on
any Secured Party, its or their employees, agents or representatives, for any
information whatsoever concerning Borrower or Borrower's financial condition
and affairs or other matters material to the Guarantor's decision to provide
this Guaranty or for any counseling, guidance, or special consideration or any
promise therefor with respect to such decision. The Guarantor agrees that
neither the Administrative Agent nor any Lender has any duty or responsibility
whatsoever, now or in the future, to provide to the Guarantor any information
concerning Borrower or Borrower's financial condition and affairs, other than
as expressly provided herein, and that, if the Guarantor receives any such
information from the Administrative Agent or any Lender, its or their
employees, agents or other representatives, the Guarantor will independently
verify the information and will not rely on the Administrative Agent or any
Lender, its or their employees, agents or other representatives, with respect
to such information.
15. DEFINITIONS. All terms used herein shall be defined in accordance
with the appropriate definitions appearing in the Uniform Commercial Code as in
effect in Florida, and such definitions are hereby incorporated herein by
reference and made a part hereof.
16. ENTIRE AGREEMENT. This Guaranty Agreement, together with the
Credit Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings, inducements,
commitments or conditions, express or implied, oral or written, except as
herein contained. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.
Neither this Guaranty Agreement nor any portion or provision hereof may be
changed, altered, modified, supplemented, discharged,
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canceled, terminated, or amended orally or in any manner other than by an
agreement, in writing signed by the parties hereto.
17. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective successors and assigns,
except that no Guarantor shall be permitted to assign this Agreement or any
interest herein, except as permitted in the Credit Agreement. All references
herein to the Administrative Agent shall include any successor thereof, each
Lender and any other obligees from time to time of the Guarantors' Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under Swap
Agreements shall be deemed to be Secured Obligations secured hereby, and each
Lender or affiliate of a Lender party to any such Swap Agreement shall be
deemed to be a Secured Party hereunder.
19. SEVERABILITY. In case any Lien, security interest or other right
of any Secured Party or any provision hereof shall be held to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall
not affect any other Lien, security interest or other right granted hereby or
provision hereof.
20. COUNTERPARTS. This Guaranty Agreement may be executed in any
number of counterparts and all the counterparts taken together shall be deemed
to constitute one and the same instrument.
21. INDEMNIFICATION. Without limitation of Section 12.9 of the Credit
Agreement or any other indemnification provision in any Loan Document, the
Guarantor hereby covenants and agrees to pay, indemnify, and hold the Secured
Parties harmless from and against any and all other reasonable out-of-pocket
liabilities, costs, expenses or disbursements of any kind or nature whatsoever
arising in connection with any claim or litigation by any Person resulting from
the execution, delivery, enforcement, performance and administration of this
Guaranty Agreement or the Loan Documents, or the transactions contemplated
hereby or thereby, or in any respect relating to the Collateral or any
transaction pursuant to which the Guarantor has incurred any Guarantors'
Obligations (all the foregoing, collectively, the "indemnified liabilities");
provided, however, that the Guarantor shall have no obligation hereunder with
respect to indemnified liabilities directly or primarily arising from the
willful misconduct or gross negligence of the Administrative Agent or any
Lender. The agreements in this subsection shall survive repayment of all
Secured Obligations, termination or expiration of this Guaranty Agreement and
occurrence of the Facility Termination Date.
22. TERMINATION. This Guaranty Agreement and all Guarantors'
Obligations hereunder shall terminate on the Facility Termination Date.
23. REMEDIES CUMULATIVE. All remedies hereunder are cumulative and are
not exclusive of any other rights and remedies of the Administrative Agent
provided by law or under the Credit Agreement, the other Loan Documents, or
other applicable agreements or instruments. The making of the Loans to the
Borrower pursuant to the Credit Agreement and the extension of the Revolving
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Credit Facility and the Term Loan Facility to the Borrower pursuant to the
Credit Agreement shall be conclusively presumed to have been made or extended,
respectively, in reliance upon the Guarantor's guaranty of the Guarantors'
Obligations pursuant to the terms hereof.
24. NOTICES. Any notice required or permitted hereunder shall be
given, (a) with respect to the Guarantor, at the address of the Borrower
indicated in Section 12.2 of the Credit Agreement and (b) with respect to the
Administrative Agent or a Lender, at the Administrative Agent's address
indicated in Section 12.2 of the Credit Agreement. All such notices shall be
given and shall be effective as provided in Section 12.2 of the Credit
Agreement.
25. GOVERNING LAW.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE
NOTWITHSTANDING ITS EXECUTION AND DELIVERY OUTSIDE SUCH STATE.
(B) THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY
OF HILLSBOROUGH STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) THE GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) AND IN ACCORDANCE WITH SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF
FLORIDA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF ANY PLACE WHERE
THE GUARANTOR OR ANY OF THE GUARANTOR'S PROPERTY OR ASSETS MAY BE
FOUND OR LOCATED.
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(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, THE
GUARANTOR HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL
BY JURY IN SUCH ACTION OR PROCEEDING.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have duly executed this Guaranty
Agreement on the day and year first written above.
[ [INSERT NAME OF GUARANTOR ]
WITNESS:
--------------------- By:
----------------------------------
Name:
--------------------- --------------------------------
Title:
-------------------------------
ADMINISTRATIVE AGENT:
WITNESS: NATIONSBANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders
---------------------
By:
----------------------------------
Name:
--------------------- --------------------------------
Title:
-------------------------------
143
EXHIBIT J
Form of Security Agreement
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is made and
entered into as of _______________, ____ by THE UNDERSIGNED (the "Grantor") in
favor of (i) the Lenders and the Issuing Banks (as defined in the Credit
Agreement referred to below), (ii) NATIONSBANK, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the
United States, in its capacity as administrative agent (the "Administrative
Agent") and (iii) THE BANK OF TOKYO-MITSUBISHI, LTD., in its capacity as
collateral agent and documentation agent for the Lenders (in such capacity the
"Collateral Agent" and collectively with the Administrative Agent, the
"Agents") (the Agents, the Lenders and the Issuing Banks hereinafter each a
"Secured Party" and collectively the "Secured Parties"). Terms used herein and
not otherwise defined shall have the meanings given to them in the Credit
Agreement.
W I T N E S S E T H :
WHEREAS, the Secured Parties have provided AMERISTEEL CORPORATION (the
"Borrower") a revolving credit facility pursuant to the Amended and Restated
Credit Agreement dated as of July 14, 1998 (as from time to time amended,
modified, supplemented or restated, the "Credit Agreement") among the Borrower,
the Agents and the Lenders;
WHEREAS, the Grantor is a new Subsidiary of the Borrower and as
required by Section 8.19 of the Credit Agreement has guaranteed the full
payment and performance of the Borrower's Obligations under the Credit
Agreement pursuant to the Guaranty Agreement dated as of the date hereof
between the Grantor and the Administrative Agent (the "Guaranty"); and
WHEREAS, the Grantor is also required to enter into this Security
Agreement pursuant to Section 8.19 of the Credit Agreement; and
WHEREAS, the Grantor will materially benefit from the Loans and
Advances to be made under the Credit Agreement and the Grantor is a party to
that certain Guaranty Agreement (the "Guaranty") dated as of the date hereof
pursuant to which the Grantor guaranteed the Obligations of the Borrower; and
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WHEREAS, as collateral security for payment and performance of its
obligations under the Guaranty, the Grantor is willing to grant to the
Collateral Agent for the benefit of the Secured Parties a security interest in
certain of its personal property and assets;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to extend credit and the Issuing Banks to issue Letters of
Credit under the Credit Agreement, the Grantor hereby agrees with the Secured
Parties and with the Collateral Agent for its benefit and the benefit of the
other Secured Parties as follows:
SECTION 1. CREATION OF SECURITY INTEREST. The Grantor hereby sells,
assigns and transfers unto the Collateral Agent, and does hereby grant to the
Secured Parties and to the Collateral Agent, as Collateral Agent for, and for
the benefit of, itself and the other Secured Parties, a continuing security
interest of first priority in, to and under all of the Grantor's right, title
and interest in and to the collateral described in section 2 hereof (the
"Collateral") in order to secure the payment and performance when due of all
Obligations (as hereinafter defined).
SECTION 2. COLLATERAL. The Collateral is:
(a) Accounts. All of the Grantor's accounts, whether now existing
or existing in the future, including, without limitation, (i) all accounts
receivable (whether or not specifically listed on schedules furnished to the
Collateral Agent), including, without limitation, all accounts created by or
arising from all of the Grantor's sales of goods or rendition of services made
under any of the Grantor's trade names, or through any of its divisions, (ii)
all unpaid seller's rights (including rescission, replevin, reclamation and
stopping in transit) relating to the foregoing or arising therefrom, (iii) all
rights to any goods represented by any of the foregoing, including returned or
repossessed goods, (iv) all reserves and credit balances held by the Grantor
with respect to any such accounts receivable or account debtors and (v) all
guarantees or collateral for any of the foregoing (all of the foregoing
property and similar property included as Collateral under Section 2(d) below
being hereinafter referred to as "Accounts");
(b) Inventory. All of the Grantor's inventory including, without
limitation, (i) all raw materials, work-in-process, parts, components,
assemblies, supplies and materials used or consumed in the Grantor's business,
wherever located and whether in the possession of the Grantor or any other
Person; (ii) all goods, wares and merchandise, finished or unfinished, held for
sale or lease or leased or furnished or to be furnished under contracts of
service, wherever located and whether in the possession of the Grantor or any
other Person and (iii) all goods returned to or repossessed by the Grantor (all
of the foregoing property and similar property included as Collateral under
Section 2(d) below being hereinafter referred to as "Inventory");
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(c) Bank Accounts. All of the Grantor's rights, title and
interest in all bank accounts in which the Grantor has or may have an interest;
and
(d) After-acquired Collateral and Proceeds. The Collateral
includes all items described in this Section 2, whether now owned or hereafter
at any time acquired by the Grantor and wherever located, and includes all
replacements, additions, accessions, substitutions, repairs, proceeds and
products relating thereto or therefrom, and all documents, ledger sheets and
files of the Grantor relating thereto. Proceeds hereunder include (i) whatever
is now or hereafter received by the Grantor upon the sale, exchange, collection
or other disposition of any item of Collateral, whether such proceeds
constitute inventory, accounts, accounts receivable, general intangibles,
instruments, securities (including, without limitation, United States of
America Treasury Bills), credits, claims, demands, documents, letters of credit
and letter of credit proceeds, chattel paper, documents of title, certificates
of title, certificates of deposit, warehouse receipts, bills of lading, leases,
deposit accounts, money, tax refund claims, contract rights, goods or equipment
and (ii) any such items which are now or hereafter acquired by the Grantor with
any proceeds of Collateral hereunder.
SECTION 2A. OBLIGATIONS SECURED. The Collateral and the security
interest created hereunder shall secure payment in full when due of (a) all
obligations of the Grantor under the Guaranty and (b) the unpaid principal of
and interest on (including interest accruing on or after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Grantor, the Borrower or any Subsidiary,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans, any reimbursement obligation or indemnity of the
Borrower on account of Letters of Credit or any accommodation extended with
respect to applications for Letters of Credit, including all Reimbursement
Obligations, and (c) all other obligations and liabilities of the Grantor and
the Borrower to the Secured Parties, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with this Security Agreement, the
Credit Agreement, the Notes, the Letters of Credit, any other Loan Document and
any other document made, delivered or given in connection herewith or
therewith, and each other obligation and liability, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, whether on account of principal, interest, fees, indemnities, costs
or expenses (including, without limitation, all fees and disbursements of
counsel to the Collateral Agent or the other Secured Parties), of the Grantor
or any Subsidiary to the Secured Parties, pursuant to the terms of the Credit
Agreement, this Security Agreement or any of the other Loan Documents
(collectively, the "Obligations").
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Grantor represents,
warrants and covenants, which representations, warranties and covenants shall
survive execution and delivery of this Security Agreement, as follows:
(a) The Grantor is a corporation duly organized and validly
existing and in good standing under the laws of the state of its incorporation
and has full power and authority to execute,
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deliver and perform this Security Agreement, to carry on its business as now
being or proposed to be conducted and to own all of its property.
(b) The Chief Executive office of the Grantor is located at the
address specified in Annex A hereto. The Grantor has no places of business
other than its chief executive office and those set forth in Annex A. All
Inventory, if any (except for Inventory in transit), held on the date hereof by
the Grantor is located at one or more of the locations shown on Annex A. The
originals of all documents evidencing all Accounts of the Grantor and the only
original books of account and records of the Grantor relating thereto are, and
will continue to be, kept at such chief executive office or at the locations
shown on Annex A, or at such new locations as the Grantor may establish in
accordance with Section 4(b). The Grantor's business is being conducted solely
under the name "_________________________", and its business is being conducted
solely under that name.
(c) All filings, registrations and recordings necessary or
appropriate to create, preserve, protect and perfect the security interest
granted by the Grantor to the Collateral Agent hereby in respect of the
Collateral have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Security Agreement in and to the Collateral
constitutes a valid and enforceable perfected security interest therein
superior and prior to the rights of all other Persons therein and subject to no
other Liens (except that the Collateral may be subject to Liens permitted under
Section 9.4 of the Credit Agreement) and is entitled to all the rights,
priorities and benefits afforded by the Uniform Commercial Code or other
relevant law as enacted in any relevant jurisdiction to perfected security
interests.
(d) There is no financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) covering or
purporting to cover any interest of any kind in the Collateral which names the
Grantor as the debtor thereunder, and so long as the Revolving Credit Facility
has not been terminated or any of the Obligations remain unpaid, the Grantor
will not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted hereby by the Grantor.
(e) This Security Agreement is made with full recourse to the
Grantor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of the Grantor contained herein, in the Credit
Agreement and otherwise in writing in connection herewith or therewith.
(f) The Grantor is, and as to Collateral acquired by it from time
to time after the date hereof will be, the owner of all Collateral free from
any Lien or other right, title or interest of any Person (other than Liens
created hereby and other Permitted Liens).
(g) Except as permitted in the Credit Agreement, none of the
Collateral is subject to contractual obligations or other restrictions that may
restrict or inhibit the Agent's rights or
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abilities to sell or dispose of the Collateral or any part thereof after the
occurrence of an Event of Default.
(h) The execution, delivery and performance by the Grantor of
this Security Agreement (i) have been duly authorized by all requisite
corporate action of the Grantor, (ii) do not require the approval of the
stockholder(s) of the Grantor and (iii) will not (1) violate any law or
regulation applicable to the Grantor or the certificate or articles of
incorporation or by-laws of the Grantor, (2) violate or constitute (with due
notice or lapse of time or both) a default under any contract or agreement to
which the Grantor is a party or by which it or any of its properties are bound
or affected, (3) violate any order of any court, tribunal or governmental
agency binding upon the Grantor or its properties or (4) result in the creation
or imposition of any Lien of any nature whatsoever upon any properties or asset
of the Grantor (other than the security interest created by the Grantor in
favor of the Lenders and the Agent hereunder).
(i) No approval or consent of, or filing or registration with,
any federal, state or local regulatory authority is required in connection with
the Grantor's execution, delivery and performance of this Security Agreement.
(j) This Security Agreement constitutes the Grantor's legal,
valid and binding obligation, enforceable against the Grantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforceability of creditors' rights generally or equitable principles at the
time in effect.
SECTION 4. COVENANTS OF THE GRANTOR. (a) The Grantor will defend the
Collateral against all claims and demands of all persons at any time claiming
the same or any interest therein (other than Permitted Liens and the security
interest created hereby) unless the Collateral Agent agrees otherwise in
writing. The Grantor will not permit any Lien notices with respect to the
Collateral or any portion thereof to exist or be on file in any public office,
except with respect to Liens created hereunder or Permitted Liens.
(b) The Grantor will not (i) change the location of its chief
executive office or establish any place of business other than those set forth
in Annex A, (ii) move or permit movement of the Collateral from the locations
specified in Annex A or (iii) voluntarily or involuntarily change its identity
or corporate structure, unless in each case the Grantor shall have given the
Collateral Agent 30 days' prior written notice thereof and shall have in
advance executed and caused to be filed and/or delivered to the Collateral
Agent any financing statements or other documents reasonably requested by the
Collateral Agent to maintain the security interest of the Collateral Agent in
the Collateral intended to be granted hereby at all times fully perfected and
in full force and effect in accordance with Section 4(c) hereof all in form and
substance satisfactory to the Collateral Agent.
(c) The Grantor will, promptly upon request by the Collateral
Agent, execute and deliver or use its best efforts to procure any document
(including, without limitation, warehouseman or processor disclaimers, landlord
waivers, disclaimers or subordination agreements with respect to
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any and all inventory that is a part of the Collateral), give any notices,
execute and file any financing statements, mortgages or other documents, all in
form and substance satisfactory to the Collateral Agent, xxxx any chattel
paper, deliver any chattel paper or instruments to the Collateral Agent and
take any other actions that are necessary or, in the opinion of the Collateral
Agent, desirable to perfect or continue the perfection and (except to the
extent provided in the Credit Agreement with respect to certain Permitted
Liens) the first priority of the Collateral Agent's security interest in the
Collateral, to protect the Collateral against the rights, claims, or interests
of third persons other than holders of Permitted Liens or to effect the
purposes of this Security Agreement. To the extent required in the Credit
Agreement, the Grantor will pay all costs incurred in connection with any of
the foregoing. The Grantor authorizes the Collateral Agent to file any such
financing statements without the signature of the Grantor.
(d) Without the prior written consent of the Collateral Agent,
the Grantor will not in any way hypothecate or create or permit to exist any
Lien, security interest, charge or encumbrance on or other interest in the
Collateral, except for Permitted Liens and the Lien created by this Security
Agreement, and the Grantor will not sell, transfer, assign, pledge,
collaterally assign, exchange or otherwise dispose of the Collateral, except as
permitted in the Credit Agreement. If the proceeds of any such sale are notes,
instruments, documents of title, letters of credit or chattel paper, such
proceeds shall be promptly delivered to the Collateral Agent to be held as
Collateral hereunder. If the Collateral, or any part thereof, is sold,
transferred, assigned, exchanged, or otherwise disposed of in violation of
these provisions, the security interest of the Collateral Agent shall continue
in such Collateral or part thereof notwithstanding such sale, transfer,
assignment, exchange or other disposition, and the Grantor will hold the
proceeds thereof in a separate account for the benefit of the Collateral Agent
and the other Secured Parties. Following such a sale, the Grantor will transfer
such proceeds to the Collateral Agent in kind.
(e) The Grantor will not enter into any agreement or
understanding which may restrict or inhibit the Collateral Agent's rights or
ability to sell or otherwise dispose of the Collateral or any part thereof
after the occurrence of an Event of Default.
(f) Upon the occurrence and during the continuance of an Event of
Default, the Collateral Agent shall have the right at any time to make any
payments and do any other acts the Collateral Agent may deem necessary to
protect its security interests in the Collateral, including, without
limitation, the rights to pay, purchase, contest or compromise any encumbrance,
charge or Lien which, in the reasonable judgment of the Collateral Agent,
appears to be prior to or superior to the security interests granted hereunder,
and appear in and defend any action or proceeding purporting to affect its
security interests in, and/or the value of, the Collateral.
(g) The Grantor shall promptly (but in no event later than one
(1) Business Day) after its receipt thereof, deliver to the Collateral Agent
any documents or certificates of title issued with respect to any property
included in the Collateral, and any promissory notes, letters of credit or
instruments related to or otherwise in connection with any property included in
the Collateral, which in any such case came into the possession of the Grantor,
or shall cause the issuer thereof to deliver
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any of the same directly to the Collateral Agent, in each case with any
necessary endorsements in favor of the Collateral Agent. Such documents,
certificates of title, promissory notes, letters of credit or instruments shall
in each case be delivered in suitable form for transfer by delivery, or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to the Collateral Agent.
(h) In furtherance of the continuing assignment and security
interest in the Accounts of the Grantor granted pursuant to this Security
Agreement, upon the creation of Accounts, the Grantor will keep and maintain,
at its own cost and expense, satisfactory and complete records of its Accounts,
including, but not limited to, the originals of all documentation with respect
thereto, records of all payments received, all credits granted thereon, all
merchandise returned and all other dealings therewith, and will execute and
deliver to the Collateral Agent in such form and manner as the Collateral Agent
may require, solely for its convenience in maintaining records of Collateral,
such confirmatory schedules of Accounts, and other appropriate reports
designating, identifying and describing the Accounts as the Collateral Agent
may require. In addition, upon the Collateral Agent's request, the Grantor
shall provide the Collateral Agent with copies of agreements with, or purchase
orders from, the customers of the Grantor and copies of invoices to customers,
proof of shipment or delivery and such other documentation and information
relating to said Accounts and other Collateral as the Collateral Agent may
require, at the Grantor's own cost and expense. Failure to provide the
Collateral Agent with any of the foregoing shall in no way affect, diminish,
modify or otherwise limit the security interests granted herein. The Grantor
hereby authorizes the Collateral Agent to regard the Grantor's printed name or
rubber stamp signature on assignment schedules or invoices as the equivalent of
a manual signature by the Grantor's authorized officers or agents.
(i) Unless an Event of Default has occurred, and is continuing,
the Grantor may and will enforce, collect and receive all amounts owing on the
Accounts, for the benefit of and on behalf of the Secured Parties such
privilege shall terminate automatically, however, upon the occurrence of an
Event of Default, or which has not otherwise been waived by the Collateral
Agent. Any checks, cash, notes or other instruments or property received by the
Grantor with respect to any Accounts shall be held by the Grantor in trust for
the benefit of the Secured Parties, separate from the Grantor's own property
and funds, and immediately turned over to the Collateral Agent with proper
assignments or endorsements. No checks, drafts or other instruments received by
the Collateral Agent shall constitute-final payment unless and until such
instruments have actually been collected.
(j) The Grantor agrees to notify the Collateral Agent promptly of
any matters materially affecting the value, enforceability or collectability of
any Account, and of all material customer disputes, offsets, defenses,
counterclaims, returns and rejections, and all reclaimed or repossessed
merchandise or goods; provided, however, that such notice shall only be
required as to any such matter that affects Accounts outstanding at one time
from any account debtor having a value greater than $100,000. The Grantor
agrees to issue credit memos promptly (with duplicates to the Collateral Agent
upon its request for same) upon accepting returns or granting allowances, and
may continue to do so until the occurrence of an Event of Default that has not
been waived by the
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Collateral Agent. After the occurrence and during the continuance of an Event
of Default, the Grantor agrees that all returned, reclaimed or repossessed
merchandise or goods shall be set aside by the Grantor, marked with the Secured
Parties' names and (i) held by the Grantor for the Secured Parties' account as
owners and assignees or (ii) if the Collateral Agent directs, sold by the
Grantor in the ordinary course of business.
(k) The Grantor will do nothing to impair the rights of the
Secured Parties and the Collateral Agent in the Collateral. The Grantor assumes
all liability and responsibility in connection with the Collateral acquired by
it and the liability of the Grantor to pay its obligations shall in no way be
affected or diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to the
Grantor.
(l) The Grantor agrees that if any warehouse receipt or receipt
in the nature of a warehouse receipt is issued with respect to any of its
Inventory, such warehouse receipt or receipt in the nature thereof shall not be
"negotiable" (as such term is used in Section 7-104 of the Uniform Commercial
Code as in effect in any relevant jurisdiction or under other relevant law).
SECTION 5. REMEDIES; WAIVER OF CLAIMS; APPLICATION OF PROCEEDS.
(a) Upon the occurrence and during the continuance of any Event
of Default which has not been waived by the Agents at the direction of the
Required Lenders, the Collateral Agent may exercise, at the cost and expense of
the Grantor, all rights of a secured party under the applicable Uniform
Commercial Code with respect to the Collateral and may take any action
permitted under the Credit Agreement. Without limiting the generality of the
foregoing the Collateral Agent may, personally or by agents or attorneys: (i)
remove from any premises where same may be located any and all documents,
instruments, files and records (including the copying of any computer records),
and any receptacles or cabinets containing same, relating to the Accounts, or
the Collateral Agent may use (at the expense of the Grantor) such of the
supplies or space of the Grantor at the Grantor's place of business or
otherwise, as may be necessary to properly administer and control the Accounts
or the handling of collections and realizations thereon; (ii) bring suit, in
the name of the Grantor, the Collateral Agent or the Lenders, to enforce the
Accounts and generally exercise all other rights of an owner of the Accounts,
including, without limitation, the right to: accelerate or extend the time of
payment, settle, compromise, release in whole or in part any amounts owing on
any Accounts and issue credits in the name of the Grantor or the Lenders; (iii)
sell, assign and deliver the Accounts and any returned, reclaimed or
repossessed merchandise, with or without advertisement, at public or private
sale, for cash, on credit or otherwise, at the Collateral Agent's sole option
and discretion, and any Lender may bid or become a purchaser at any such sale,
free from any right of redemption, which right is hereby expressly waived by
the Grantor; (iv) foreclose the security interests in the Accounts created
pursuant to the Loan Documents by any available judicial procedure; (v) take
possession of any or all of the Inventory without judicial process and enter
any premises where any Inventory maybe located for the purpose of taking
possession of or removing the same; (vi) without notice of advertisement, sell,
lease, or otherwise dispose of all or any part of the Inventory, whether in its
then condition or after further, preparation or processing, in the name of the
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Grantor or the Lenders, or in the name of such other party as the Collateral
Agent may designate, either at public or private sale or at any broker's board,
in lots or in bulk, for cash or for credit, with or without warranties or
representations, and upon such other terms and conditions as the Collateral
Agent in its sole discretion may deem advisable, and the Collateral Agent or
any other Lender shall have the right to purchase at any such sale; and/or
(vii) instruct the obligor or obligors on any agreement, instrument or other
obligation (including, without limitation, the Accounts) constituting the
Collateral to make any payment required by the terms of such agreement or
instrument directly to the Collateral Agent. Unless expressly prohibited by the
licensor thereof, if any, the Collateral Agent is hereby granted a license to
use all computer software programs, data bases, processes and materials used by
the Grantor in connection with its businesses or in connection with the
Collateral.
(b) If any Inventory shall require rebuilding, repairing,
maintenance or preparation, the Collateral Agent shall have the right, at its
option, to do such of the aforesaid as is necessary, for the purpose of putting
the Inventory in such saleable form as the Collateral Agent shall deem
appropriate. The Grantor agrees, at the request of the Collateral Agent, to
assemble the Inventory and to make it available to the Collateral Agent at
places which the Collateral Agent shall select, whether at the premises of the
Grantor or elsewhere, and to make available to the Collateral Agent the
premises and facilities of the Grantor for the purpose of the Collateral
Agent's taking possession of, removing or putting the Inventory in saleable
form and to deliver possession of the Inventory or any part thereof to the
Collateral Agent.
(c) If notice of intended disposition of any Collateral is
required by law, the Grantor agrees that five (5) Business Days notice shall
constitute reasonable notification.
(d) The net cash proceeds resulting from the Collateral Agent's
exercise of any of the foregoing rights (after deducting all charges, costs and
expenses, including reasonable attorneys fees) shall be applied by the
Collateral Agent to the payment of the Grantor's Obligations to the Collateral
Agent and the other Secured Parties, whether due or to become due, in
accordance with Section 5(i). The Grantor shall remain liable to the Collateral
Agent and the other Secured Parties for any deficiencies, and the Collateral
Agent and the other Secured Parties in turn agree to remit to the Grantor or
its successors or assigns, any surplus resulting therefrom.
(e) The enumeration of the foregoing rights is not intended to be
exhaustive and the exercise of any right shall not preclude the exercise of any
other rights, all of which shall be cumulative, and any repossession or
retaking or sale of the Collateral pursuant to the terms hereof shall not
operate to release the Grantor from the obligations or its obligations
hereunder or under the other Credit Documents.
(f) In no event shall prior recourse to any Accounts or other
Collateral be a prerequisite to the Collateral Agent's or any other Secured
Party's right to demand payment of any obligation upon its maturity or upon the
occurrence of an Event of Default.
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(g) The Grantor's obligation to deliver the Collateral to the
Collateral Agent pursuant to this Section 5 is of the essence of this Security
Agreement and, accordingly, upon application to a court of equity having
jurisdiction, the Collateral Agent shall be entitled to a decree requiring
specific performance by the Grantor of such obligation.
(h) Except as otherwise provided in this Security Agreement, THE
GRANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND
JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING POSSESSION OR
THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES AND ANY SUCH RIGHT WHICH THE GRANTOR WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, and the
Grantor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except
any damages which are the direct result of the Collateral Agent's
gross negligence or willful misconduct;
(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Security
Agreement or the absolute sale of the Collateral or any portion
thereof, and the Grantor, for itself and all who may claim under it,
insofar as it or they now or hereafter lawfully may, hereby waives the
benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization
upon, any Collateral shall operate to divest all right, title, interest, claim
and demand, either at law or in equity, of the Grantor therein and thereto, and
shall be a perpetual bar both at law and in equity against the Grantor and
against any and all Persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under
the Grantor.
The proceeds of any Collateral obtained or disposed of pursuant to
this Section 5 shall be applied as follows:
(i) to the payment of any and all expenses and fees
(including reasonable attorneys' fees) incurred by the Collateral
Agent in obtaining, taking possession of removing, insuring,
repairing, storing and disposing of Collateral and any and all amounts
incurred by the Collateral Agent in connection therewith;
(ii) next, any surplus then remaining to the payment of the
obligations in such order and priority as the Collateral Agent shall
determine;
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(iii) if the Revolving Credit Facility is then terminated and
no other Obligation is outstanding, any surplus then remaining shall
be paid to the Grantor, subject, however, to the rights of the holder
of any then existing Lien of which the Collateral Agent has actual
notice (without investigation);
it being understood that the Grantor shall remain liable to the extent of any
deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of the sums referred to in clauses (i) and (ii) of this
section 5(i) with respect to the Grantor.
(j) In case the Collateral Agent shall have instituted any
proceeding to enforce any right, power or remedy under this Security Agreement
by foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such case the Grantor, the
Collateral Agent and each holder of any of the obligations shall be restored to
their former positions and rights hereunder with respect to the Collateral
subject to the security interest created under this Security Agreement, and all
rights, remedies and powers of the Collateral Agent shall continue as if no
such proceeding had been instituted.
SECTION 6. MISCELLANEOUS PROVISIONS.
SECTION 6.1. Notices. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the form
and manner set forth in Section 12.2 of the Credit Agreement, and delivered (a)
with respect to the Grantor, at the Grantor's address indicated in Section 12.2
of the Credit Agreement, and (b) with respect to the Agents or a Lender, at the
Agents' addresses indicated in Section 12.2 of the Credit Agreement.
SECTION 6.2. Headings. The headings in this Security Agreement are for
purposes of reference only and shall not affect the meaning or construction of
any provision of this Security Agreement.
SECTION 6.3. Severability. The provisions of this Security Agreement
are severable, and if any clause or provision shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect, in that jurisdiction only, such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
security Agreement in any jurisdiction.
SECTION 6.4. Amendments, Waivers and Consents. Any amendment or waiver
of any provision of this security Agreement and any consent to any departure by
the Grantor from any provision of this Security Agreement shall be effective
only if made or given in compliance with Section 12.6 of the Credit Agreement.
SECTION 6.5. Interpretation of Agreement. Time is of the essence in
each provision of this Security Agreement of which time is an element. All
terms not defined herein or in the Credit
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Agreement shall have the meaning set forth in the applicable Uniform Commercial
Code, except where the context otherwise requires. To the extent a term or
provision of this Security Agreement conflicts with the Credit Agreement and is
not dealt with herein with more specificity, the Credit Agreement shall control
with respect to the subject matter of such term or provision. Acceptance of or
acquiescence in a course of performance rendered under this Security Agreement
shall not be relevant in determining the meaning of this Security Agreement
even though the accepting or acquiescing party had knowledge of the nature of
the performance and opportunity for objection.
SECTION 6.6. Continuing Security Interest; Transfer of Notes. This
Security Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect (notwithstanding the
occurrence of the Stated Termination Date) until payment in full (including
after the Stated Termination Date) of the Obligations and termination of the
Credit Agreement and the other Loan Documents, (ii) be binding upon the
Grantor, its successors and assigns and (iii) inure, together with the rights
and remedies of the Collateral Agent hereunder, for the benefit of the
Collateral Agent, the other Secured Parties and their respective successors,
transferees and assigns. Without limiting the generality of clause (iii) above,
any Lender may, except as limited by the express terms of the Credit Agreement,
assign or otherwise transfer any Note held by it to any other Person, and such
other Person shall thereupon become vested with all the rights, benefits and
security interests hereunder existing in respect thereof.
SECTION 6.7. Reinstatement. To the extent permitted by law, this
Security Agreement shall continue to be effective or be reinstated if at any
time any amount received by the Collateral Agent or any other Secured Party in
respect of the Obligations is rescinded or must otherwise be restored or
returned by the Collateral Agent or any other Secured Party or as repaid in
good faith settlement of a pending or threatened avoidance claim upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Grantor or upon the appointment of any receiver, intervenor, conservator,
trustee or similar official for the Grantor or any substantial part of its
assets, or otherwise, all as though such payments had not been made.
SECTION 6.8. Survival of Provisions. All representations, warranties
and covenants of the Grantor contained herein shall survive the execution and
delivery of this Security Agreement, and shall terminate only upon the full and
final payment and performance by the Grantor of the obligations secured hereby
and termination of the Credit Agreement and the other Loan Documents.
SECTION 6.9. Setoff. The Secured Parties shall have the rights of
setoff set forth in Section 12.3 of the Credit Agreement.
SECTION 6.10. Power of Attorney. (a) The Grantor hereby irrevocably
authorizes and appoints the Collateral Agent, or any Person or agent the
Collateral Agent may designate, as the Grantor's attorney-in-fact, at the
Grantor's cost and expense, to exercise, subject to the limitations set forth
below, all of the following powers in addition to the powers granted by law or
otherwise set
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forth in this Security Agreement, which being coupled with an interest, shall
be irrevocable until all of the Obligations have been paid and satisfied in
full and the Credit Agreement is terminated:
(1) To receive, take, endorse, sign, assign and deliver, all
in the name of the Collateral Agent or any other Secured Party any and
all checks, notes, drafts, and other documents or instruments relating
to the Collateral;
(2) To request, at any time from customers indebted on
Accounts verification of information concerning the Accounts and the
amounts owing thereon;
(3) Upon the occurrence and during the continuance of a
Default, to receive, open and dispose of all mail addressed to the
Grantor and to notify postal authorities to change the address for
delivery thereof to such address as the Collateral Agent may
designate;
(4) Upon the occurrence and during the continuance of a
Default, to give customers indebted on Accounts notice of the Secured
Parties' interest therein, and/or to instruct such customers to make
payment directly to the Collateral Agent for the Grantor's account;
and
(5) Upon the occurrence and during the continuance of a
Default, to take or bring, in the name of the Collateral Agent, any
other Secured Party or the' Grantor, all steps, actions, suits or
proceedings deemed by the Collateral Agent necessary or desirable to
enforce or effect collection of the Accounts.
(b) In addition to all of the powers granted to the Collateral
Agent pursuant to (a) above, the Grantor hereby appoints and constitutes the
Collateral Agent and its designee as the Grantor's attorney-in-fact to exercise
all of the following powers upon and at any time after the occurrence and
during the continuance of an Event of Default (i) collection of Accounts or
proceeds of any Collateral, (ii) conveyance of any item of Collateral to any
purchaser thereof, (iii) giving of any notices or recording any Liens under
Section 4(c) hereof, and (iv) making of any payments or taking any acts under
Section 4(d) hereof. The Collateral Agent's authority hereunder shall include,
without limitation, the authority to endorse and negotiate, for the Collateral
Agent's own account, any checks or instruments in the name of the Grantor,
execute and give receipt for any certificate of ownership or any document,
transfer title to any item of Collateral, send verifications of Accounts to any
customer, sign the Grantor's name on all financing statements or any other
documents deemed necessary or appropriate to preserve, protect or perfect ' the
security interest in the Collateral and to file the same, prepare, file and
sign the Grantor's name on any notice of Lien, assignment or satisfaction of
Lien or similar document in connection with any Account and prepare, file and
sign the Grantor's name on a proof of claim in bankruptcy or similar document
against any customer of the Grantor, and to take any other actions arising from
or incident to the powers granted to the Collateral Agent in this Security
Agreement. This power of attorney is coupled with an interest and is
irrevocable by the Grantor.
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SECTION 6.11. Authority of the Collateral Agent. The Collateral Agent
shall have and be entitled to exercise all powers hereunder which are
specifically granted to the Collateral Agent by the terms hereof, together with
such powers as are reasonably incident thereto. The Collateral Agent may
perform any of its duties hereunder or in connection with the Collateral by or
through agents or employees and shall be entitled to retain counsel and to act
in reliance upon the advice of counsel concerning all such matters. Neither the
Collateral Agent nor any director, officer, employee, attorney or agent of the
Collateral Agent shall be liable to the Grantor for any action taken or omitted
to be taken by it or them hereunder, except for its or their own gross
negligence or willful misconduct, nor shall the Collateral Agent be responsible
for the validity, effectiveness or sufficiency of this Security Agreement or of
any document or security furnished pursuant hereto. The Collateral Agent and
its directors, officers, employees, attorneys and agents shall be entitled-to
rely on any communication, instrument or document reasonably believed by it or
them to be genuine and correct and to have been signed or sent by the proper
person or persons.
SECTION 6.12. Release; Termination of Agreement. Subject to the
provisions of Section 6.7 hereof, this Security Agreement shall terminate upon
full and final payment and performance of all the Obligations and termination
of the Revolving Credit Facility. At such time, the Collateral Agent shall, at
the request of the Grantor, reassign and redeliver to the Grantor all of the
Collateral hereunder which has not been sold, disposed of, retained or applied
by the Collateral Agent in accordance with the terms hereof. Such reassignment
and redelivery shall be without warranty by or recourse to the Collateral
Agent, except as to the absence of any prior assignments by the Collateral
Agent of its interest in the Collateral, and shall be at the expense of the
Grantor.
SECTION 6.13. Counterparts. This Security Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but all of
which shall together constitute one and the same agreement.
SECTION 6.14. Governing Law; Venue; Waiver of Jury Trial.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE NOTWITHSTANDING ITS
EXECUTION AND DELIVERY OUTSIDE SUCH STATE.
(B) THE GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HILLSBOROUGH, STATE OF FLORIDA,
UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE GRANTOR EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT
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IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE GRANTOR HEREBY IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) THE GRANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS
IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL
(POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION 12.2 OF
THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY SECURED PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE
THE GRANTOR OR ANY OF THE GRANTOR' PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, THE GRANTOR HEREBY AGREES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN
ANY SUCH ACTION OR PROCEEDING.
SECTION 6.15. LEFT BLANK INTENTIONALLY.
SECTION 6.16. LEFT BLANK INTENTIONALLY.
SECTION 6.17. DELAYS; PARTIAL EXERCISE OF REMEDIES. NO DELAY OR
OMISSION OF THE COLLATERAL AGENT OR ANY OTHER SECURED PARTY TO EXERCISE ANY
RIGHT OR REMEDY HEREUNDER, WHETHER BEFORE OR AFTER THE HAPPENING OF ANY EVENT
OF DEFAULT, SHALL IMPAIR ANY SUCH RIGHT OR SHALL OPERATE AS A WAIVER THEREOF OR
AS A WAIVER OF ANY SUCH EVENT OF DEFAULT. NO SINGLE OR PARTIAL EXERCISE BY THE
COLLATERAL AGENT OR ANY OTHER SECURED PARTY OF ANY RIGHT OR REMEDY SHALL
PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF, OR PRECLUDE ANY OTHER RIGHT OR
REMEDY.
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SECTION 6.18. Indemnity. (a) The Grantor shall and hereby agrees to
indemnify, defend and hold harmless the Collateral Agent and-its directors,
officers, agents, employees and counsel (each herein called an "Indemnitee")
from and against (i) any and all losses, claims, damages, liabilities,
deficiencies, judgments or expenses (collectively, "Losses") incurred by any of
them (except, in the case of any Indemnitee, to the extent that any such Loss
is finally judicially determined to have resulted from such Indemnitee's own
gross negligence or willful misconduct) arising out of or by reason of any
litigations, investigations, claims or proceedings which arise out of or are in
any way related to (A) this Security Agreement, any other Loan Document or the
transactions contemplated hereby or thereby, (B) the Collateral Agent entering
into this Security Agreement, the other Loan Documents or any other agreements
and documents relating hereto, including, without limitation, amounts paid in
settlement, court costs and the reasonable fees and disbursements of counsel
incurred in connection with any such litigation, investigation, claim or
proceeding or any advice rendered in connection with any of the foregoing and
(ii) any Losses, claims, damages, liabilities or deficiencies incurred in
connection with any remedial or other action taken by the Grantor or any
Secured Party in connection with compliance by the Grantor or any of its
properties, with any Environmental Laws. if and to the extent that the
obligations of the Grantor hereunder are unenforceable for any reason, the
Grantor hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under applicable law. The
Grantor's obligations hereunder shall survive any termination of this Security
Agreement and the other Loan Documents and the payment in full of the
Obligations, and are in addition to, and not in substitution of, any other of
their obligations set forth in this Security Agreement.
(b) The Grantor shall also, upon demand, (i) pay to the
Collateral Agent all costs or expenses (including reasonable fees and
disbursements of counsel) incurred by the Collateral Agent in connection with
the preparation of this Security Agreement and the other Loan Documents and
(ii) pay to the Collateral Agent and each Lender all costs and expenses
(including the reasonable fees and disbursements of counsel and other
professionals) paid or incurred by the Collateral Agent or such Lender in (A)
enforcing or-defending its rights under or in respect of this Security
Agreement, the other Loan Documents or any other document or instrument now or
hereafter executed and delivered in connection herewith, (B) in collecting the
Loans, (C) in foreclosing or otherwise collecting upon the Collateral or any
part thereof and (D) obtaining any legal, accounting or other advice in
connection with any of the foregoing.
(c) Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement shall constitute Obligations secured
by the Collateral. The indemnity obligations of the Grantor contained in this
Section 6.18 shall continue in full force and effect notwithstanding the full
payment of all the Notes issued under the Credit Agreement and all of the other
Obligations and notwithstanding the discharge thereof.
SECTION 6.19. Obligations Absolute. The obligations of the Grantor
under this Security Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
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extension, amendment or modification of, or addition or supplement to or
deletion from, any of the Loan Documents or any other instrument or agreement
referred to therein, or any assignment or transfer of any thereof; (ii) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such instrument or agreement or this Security Agreement or any
exercise or non-exercise of any right, remedy, power or privilege under or in
respect of this Security Agreement or any other Loan Document; (iii) any
furnishing of any additional security to the Collateral Agent or any acceptance
thereof or any sale, exchange, release, surrender or realization of or upon any
security by the Collateral Agent; or (iv) any invalidity, irregularity or
unenforceability of all or any part of the obligations or of any security
therefor.
SECTION 6.20. Grantor's Duties. It is expressly agreed, anything
herein contained to the contrary notwithstanding, that the Grantor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of or in
connection with this Security Agreement, nor shall the Collateral Agent be
required or obligated in any manner to perform or fulfill any of the
obligations of the Grantor under or with respect to any Collateral.
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IN WITNESS WHEREOF, the undersigned has caused this Security Agreement
to be duly executed and delivered as of the day and year first above written.
GRANTOR:
[ INSERT NAME OF GRANTOR ]
WITNESS:
By:
--------------------- -----------------------------------
Name:
---------------------------------
Title:
--------------------- --------------------------------
AGENTS:
NATIONSBANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders
WITNESS:
By:
---------------------- ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
----------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., as
Collateral Agent for the Lenders
WITNESS:
By:
---------------------- ----------------------------------
Name:
--------------------------------
Title:
---------------------- -------------------------------
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EXHIBIT K
Form of Consolidated Amendment
THIS CONSOLIDATED AMENDMENT TO COLLATERAL DOCUMENTS (the
"Amendment Agreement") is made and entered into as of this 14th day of July,
1998 by and among:
AMERISTEEL FINANCE, INC., a Delaware corporation having its principal
place of business in Wilmington, Delaware ("AFI");
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
("NationsBank"), in its capacity as administrative agent (the "Administrative
Agent") for each of the lenders (the "Lenders") now or hereafter party to the
Amended and Restated Credit Agreement (as defined below); and
THE BANK OF TOKYO-MITSUBISHI, LTD in its capacity as collateral agent
and documentation agent for the Lenders (in such capacity, the "Collateral
Agent" and, together with the Administrative Agent, the "Agents").
W I T N E S S E T H:
WHEREAS, AmeriSteel Corporation, formerly known as Florida Steel
Corporation (the "Borrower"), certain lenders (the "Original Lenders") and The
Bank of Tokyo, Ltd., New York Agency, as agent (the "Original Agent") have
entered into a Credit Agreement dated June 9, 1995 (as amended, the "Original
Agreement") pursuant to which the Original Lenders have made available to the
Borrower a revolving credit facility of up to $140,000,000, which revolving
credit facility is evidenced by revolving notes dated June 9, 1995 (the
"Original Notes"); and
WHEREAS, the obligations of the Borrower under the Original Agreement
are guaranteed by AFI pursuant to the Guaranty from AFI to the Original Agent
and the Lenders dated December 30, 1996 (the "AFI Guaranty"); and
WHEREAS, the obligations of AFI under the AFI Guaranty are secured by
certain assets of AFI as described in a Security Agreement from AFI to the
Original Agent for the benefit of the Lenders dated December 30, 1996 (the "AFI
Security Agreement"); and
WHEREAS, the Borrower has requested that the Agents and the Lenders
amend the Original Agreement in order, among other things, to (i) substitute
NationsBank, National Association as the Administrative Agent in lieu of the
Original Agent, (ii) increase the amount available under the revolving credit
facility from $140,000,000 to $150,000,000, (iii) extend the maturity of the
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indebtedness arising under the Original Agreement and (iv) provide for the
performance by the Administrative Agent of certain duties of the Original
Agent; and
WHEREAS, by that Amended and Restated Revolving Credit Agreement of
even date herewith (the "Amended and Restated Credit Agreement"), the Borrower,
the Agents and the Lenders have amended and restated the Original Agreement;
and
WHEREAS, pursuant to the terms and requirements of the Amended and
Restated Credit Agreement, the AFI Guaranty and AFI Security Agreement shall be
amended as herein provided.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, subject to the conditions hereof, it is hereby
agreed as follows:
26. Definitions. All defined terms used herein and in the Original
Agreement shall have the same meanings as set forth in the Original Agreement,
except as amended by the Amended and Restated Credit Agreement, and except as
further amended and modified hereby.
27. Amendment of AFI Security Agreement. The AFI Security Agreement
shall be and hereby is amended, effective as of the date hereof, as follows:
(a) The first paragraph of the Recitals of the Security
Agreement is hereby amended by deleting said first paragraph in its
entirety and inserting in lieu thereof the following two (2)
paragraphs:
WHEREAS, AmeriSteel Corporation (formerly called
Florida Steel Corporation), a Florida corporation (the
"Borrower"), the Secured Parties, BTM and NationsBank, N.A.
(formerly known as NationsBank of Florida, N.A.), as Issuing Banks
and Co-Administrative Agents, and BTM, as Agent, are parties to a
Credit Agreement dated as of June 9, 1995 (as from time to time
amended, modified, supplemented or restated, the "Original
Agreement"), pursuant to which the Lenders established a
$140,000,000 credit facility for the Borrower, available on the
terms and conditions set forth therein; and
WHEREAS, the Borrower, NationsBank, National
Association, as Lender and as Administrative Agent (the
"Administrative Agent"), The Bank of Tokyo-Mitsubishi, Ltd, as
Lender and as Collateral Agent and Documentation Agent (the
"Collateral Agent" and, together with the Administrative Agent,
the "Agents"), and the lenders party thereto (the "Lenders") have
entered into that certain Amended and Restated Revolving Credit
Agreement (collectively with the schedules and exhibits thereto,
as the same may be amended, modified, restated or supplemented in
accordance with the terms thereof, the "Credit Agreement") dated
as of July 14, 1998 pursuant
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to which the Lenders have agreed, upon the terms and conditions
set forth therein, to amend and restate the Original Agreement and
to make available to the Borrower revolving credit loans in the
maximum principal amount of up to $150,000,000 (the "Loans"); and
(b) The term "Obligations" appearing in the AFI Security
Agreement shall be and hereby is amended to also include as part of
its meaning when used therein all obligations and liabilities of AFI
under the AFI Guaranty, as amended hereby.
(c) The term "Agent" appearing in the AFI Security Agreement
shall be and hereby is amended to mean when used therein The Bank of
Tokyo-Mitsubishi, Ltd., as Collateral Agent.
(d) Section 2(c) of the AFI Security Agreement is hereby
amended by deleting from such Section 2(c) the phrase
"Lockbox Account."
(e) Sections 6.14, 6.15 and 6.16 of the AFI Security
Agreement are hereby amended by deleting said Sections in their
entirety and inserting in lieu thereof the following:
SECTION 6.14. GOVERNING LAW; VENUE; WAIVER OF TRIAL BY JURY.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH
CAROLINA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND
DELIVERY OUTSIDE SUCH STATE.
(B) DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL
COURT SITTING IN THE COUNTY OF MECKLENBURG, STATE OF NORTH
CAROLINA AND UNITED STATES OF AMERICA AND, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, DEBTOR EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF
THE VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR
PROCEEDING, AND IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUCH SUIT, ACTION OR PROCEEDING.
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164
(C) DEBTOR AGREES THAT SERVICE OF PROCESS MAY
BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED BY SECTION
12.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE
OF NORTH CAROLINA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR
(C) HEREOF SHALL PRECLUDE THE AGENTS OR ANY LENDER FROM
BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY PLACE WHERE DEBTOR OR ANY OF DEBTOR'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS
AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION
WITH THE FOREGOING, DEBTOR AND THE AGENTS ON BEHALF OF THE
LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON
MAY HAVE TO TRIAL BY JURY IN SUCH ACTION OR PROCEEDING.
SECTION 6.15. LEFT BLANK INTENTIONALLY
SECTION 6.16. LEFT BLANK INTENTIONALLY
3. Amendment of AFI Guaranty. The AFI Guaranty shall be and hereby is
amended, effective as of the date hereof, as follows:
(a) The first paragraph of the Recitals of the AFI Guaranty
is hereby amended by deleting said first paragraph in its entirety and
inserting in lieu thereof the following two (2) paragraphs:
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165
WHEREAS, AmeriSteel Corporation (formerly called Florida Steel
Corporation), a Florida corporation (the "Borrower"), the Secured
Parties, BTM and NationsBank, N.A. (formerly known as NationsBank of
Florida, N.A.), as Issuing Banks and Co-Administrative Agents, and BTM,
as Agent, are parties to a Credit Agreement dated as of June 9, 1995
(as from time to time amended, modified, supplemented or restated, the
"Original Agreement"), pursuant to which the Lenders established a
$140,000,000 credit facility for the Borrower, available on the terms
set forth therein; and
WHEREAS, the Borrower, NationsBank, National Association, as
Lender and as Administrative Agent (the "Administrative Agent"), The
Bank of Tokyo-Mitsubishi, Ltd, as Lender and as Collateral Agent and
Documentation Agent (the "Collateral Agent" and, together with the
Administrative Agent, the "Agents"), and the lenders party thereto (the
"Lenders") have entered into that certain Amended and Restated
Revolving Credit Agreement (collectively with the schedules and
exhibits thereto, as the same may be amended, modified, restated or
supplemented in accordance with the terms thereof, the "Credit
Agreement") dated as of July __, 1998 pursuant to which the Lenders
have agreed, upon the terms and conditions set forth therein, to amend
and restate the Original Agreement and to make available to the
Borrower revolving credit loans in the maximum principal amount of up
to $150,000,000 (the "Loans"); and
(b) The term "Guaranteed Obligations" appearing in the AFI Guaranty
shall be and hereby is amended to also include as part of its meaning when used
therein all obligations and liabilities of the Borrower under the Amended and
Restated Credit Agreement and the Loan Documents described therein.
(c) Paragraphs 17, 18 and 19 of the AFI Guaranty are hereby amended by
deleting said Paragraphs in their entirety and inserting in lieu thereof the
following:
17. GOVERNING LAW; VENUE; WAIVER OF TRIAL BY JURY.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN
SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY OUTSIDE SUCH
STATE.
(B) GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES
AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO
K-5
166
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
MECKLENBURG, STATE OF NORTH CAROLINA AND UNITED STATES OF AMERICA
AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, GUARANTOR
EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO
THE LAYING OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH
SUIT, ACTION OR PROCEEDING.
(C) GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR
OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY
REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF
THE BORROWER PROVIDED BY SECTION 12.2 OF THE CREDIT AGREEMENT, OR
BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE
LAWS IN EFFECT IN THE STATE OF FLORIDA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF
SHALL PRECLUDE THE AGENTS OR ANY LENDER FROM BRINGING ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF ANY PLACE WHERE
GUARANTOR OR ANY OF GUARANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR
LOCATED.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY
IN THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING,
GUARANTOR AND THE AGENTS ON BEHALF OF THE LENDERS HEREBY AGREE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND
HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN SUCH ACTION
OR PROCEEDING.
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18. LEFT BLANK INTENTIONALLY
19. LEFT BLANK INTENTIONALLY
28. Representations and Warranties. In order to induce the Agents and
each of the other Lenders signatories hereto to enter into this Amendment
Agreement, AFI hereby represents and warrants that the AFI Guaranty and AFI
Security Agreement have been re-examined by AFI and that as of the date hereof:
(a) The representations and warranties made by AFI in the AFI
Guaranty and AFI Security Agreement are true on and as of the date
hereof;
(b) There has been no material adverse change in the condition,
financial or otherwise, of AFI since the date of the most recent
financial reports of the Borrower delivered to the Administrative
Agent, other than changes in the ordinary course of business;
(c) The business and properties of AFI are not, and since the date
of their most recent financial reports delivered to the Administrative
Agent, have not been, adversely affected in any substantial way as the
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo, riot, activities of armed
forces, war or acts of God or the public enemy, or cancellation or loss
of any major contracts; and
(d) After giving effect to this Amendment Agreement no condition
exists which, upon the effectiveness of the amendment contemplated
hereby, would constitute a Default or an Event of Default on the part
of the Borrower under the Original Agreement or the Amended and
Restated Credit Agreement, either immediately or with the lapse of time
or the giving of notice, or both.
29. Conditions Precedent. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
(a) eight counterparts of this Amendment Agreement duly executed by
all signatories hereto;
(b) opinion of counsel for AFI as to the authorization, execution
and delivery of this Amendment Agreement and the enforceability of the
same against AFI in accordance with its terms;
(c) resolutions of the Board of Directors of AFI approving this
Amendment Agreement certified by the Secretary of AFI;
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168
(d) an amount equal to the aggregate legal fees incurred by
the Agents in connection with the negotiation, review and execution of
this Amendment Agreement and the other documents related hereto; and
(e) copies of all additional agreements, instruments and
documents which the Agents may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of AFI relating to the matters provided for herein shall be
satisfactory to the Administrative Agent and its counsel.
30. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and Agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that,
except as in this Amendment Agreement otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any party to the other. None of the terms or conditions of this Amendment
Agreement may be changed, modified, waived or canceled orally or otherwise,
except by writing, signed by all the parties hereto, specifying such change,
modification, waiver or cancellation of such terms or conditions, or of any
proceeding or succeeding breach thereof.
31. No Novation. Each of the parties hereto acknowledges that the
provisions of this Amendment Agreement and the Amended and Restated Credit
Agreement constitute amendments to, and not a novation of, the indebtedness of
the Borrower and AFI to the Lenders, and a modification of the terms of
repayment and security for such indebtedness. This Amendment Agreement and the
Amended and Restated Credit Agreement do not constitute or effect either (i) a
cancellation or repayment of any indebtedness, or (ii) the transfer of property
to secure any indebtedness in addition to property previously transferred.
32. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the AFI Guaranty, the AFI Security Agreement
and all other Loan Documents are hereby confirmed and ratified in all respects
and shall remain in full force and effect according to their respective terms.
33. Counterparts. This Amendment Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
34. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO ANY
OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF
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169
LAWS. AFI HEREBY (i) SUBMITS TO THE JURISDICTION AND VENUE OF THE STATE AND
FEDERAL COURTS OF NORTH CAROLINA FOR THE PURPOSES OF RESOLVING DISPUTES
HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS TO WHICH EACH IS A PARTY OR
FOR PURPOSES OF COLLECTION AND (ii) WAIVE TRIAL BY JURY IN CONNECTION WITH ANY
SUCH LITIGATION.
35. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
36. Successors and Assigns. This Amendment Agreement shall be binding
upon and inure to the benefit of AFI, the Lenders signatories hereto, the
Agents and their respective successors, assigns and legal representatives;
provided, however, that AFI, without the prior consent of the Lenders, may not
assign any rights, powers, duties or obligations hereunder.
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170
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AMERISTEEL FINANCE, INC.
WITNESS:
------------------------- By:
----------------------------------------
Name:
--------------------------------------
------------------------- Title:
-------------------------------------
Signature Page 1 of 2
171
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent for the Lenders
By:
---------------------------------------
Name: Miles X. Xxxxxxx III
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD
as Collateral Agent and Documentation Agent
for the Lenders
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Signature Page 2 of 2
172
EXHIBIT L
Form of Security Agreement Amendment
THIS AMENDMENT TO SECURITY AGREEMENT (the "Amendment Agreement") is
made and entered into as of this 14th day of July, 1998 by and among:
AMERISTEEL CORPORATION, a Florida corporation having its principal
place of business in Tampa, Florida (the "Borrower");
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
("NationsBank"), in its capacity as administrative agent (the "Administrative
Agent") for each of the lenders (the "Lenders") now or hereafter party to the
Amended and Restated Credit Agreement (as defined below); and
THE BANK OF TOKYO-MITSUBISHI, LTD in its capacity as collateral agent
and documentation agent for the Lenders (in such capacity, the "Collateral
Agent" and, together with the Administrative Agent, the "Agents").
W I T N E S S E T H:
WHEREAS, the Borrower (formerly called Florida Steel Corporation),
certain lenders (the "Original Lenders") and The Bank of Tokyo, Ltd., New York
Agency, as agent (the "Original Agent") have entered into a Credit Agreement
dated June 9, 1995 (as amended, the "Original Agreement") pursuant to which the
Original Lenders have made available to the Borrower a revolving credit
facility of up to $140,000,000, which revolving credit facility is evidenced by
revolving notes dated June 9, 1995 (the "Original Notes"); and
WHEREAS, the obligations of the Borrower under the Original Agreement
are secured by certain assets of the Borrower as described in the Security
Agreement between the Borrower and the Original Agent dated June 9, 1995 (the
"Security Agreement"); and
WHEREAS, the Borrower has requested that the Agents and the Lenders
amend the Original Agreement in order, among other things, to (i) substitute
NationsBank, National Association as the Administrative Agent in lieu of the
Original Agent, (ii) increase the amount available under the revolving credit
facility from $140,000,000 to $150,000,000, (iii) extend the maturity of the
indebtedness arising under the Original Agreement and (iv) provide for the
performance by the Administrative Agent of certain duties of the Original
Agent; and
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173
WHEREAS, by that Amended and Restated Revolving Credit Agreement of
even date herewith (the "Amended and Restated Credit Agreement"), the Borrower,
the Agents and the Lenders have amended and restated the Original Agreement;
and
WHEREAS, pursuant to the terms and requirements of the Amended and
Restated Credit Agreement, the Security Agreement shall be amended as herein
provided.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, subject to the conditions hereof, it is hereby
agreed as follows:
37. Definitions. All defined terms used herein and in the Original
Agreement shall have the same meanings as set forth in the Original Agreement,
except as amended by the Amended and Restated Credit Agreement, and except as
further amended and modified hereby.
38. Amendment of Security Agreement. The Security Agreement shall be
and hereby is amended, effective as of the date hereof, as follows:
(a) The first paragraph of the Recitals of the Security
Agreement is hereby amended by deleting said first paragraph in its
entirety and inserting in lieu thereof the following two (2)
paragraphs:
WHEREAS, the Borrower, the Secured Parties and BOT and
NationsBank, N.A. (formerly known as NationsBank of Florida, N.A.),
as Co-Administrative Agents, are parties to a Credit Agreement
dated as of June 9, 1995 (as from time to time amended, modified,
supplemented or restated, the "Original Agreement"), pursuant to
which the Lenders established a $140,000,000 credit facility for
the Borrower, available on the terms and conditions set forth
therein; and
WHEREAS, the Borrower, NationsBank, National Association, as
Lender and as Administrative Agent (the "Administrative Agent"),
The Bank of Tokyo-Mitsubishi, Ltd, as Lender and as Collateral
Agent and as Documentation Agent (the "Collateral Agent" and,
together with the Administrative Agent, the "Agents"), and the
lenders party thereto (the "Lenders") have entered into that
certain Amended and Restated Revolving Credit Agreement
(collectively with the schedules and exhibits thereto, as the same
may be amended, modified, restated or supplemented in accordance
with the terms thereof, the "Credit Agreement") dated as of July
14, 1998 pursuant to which the Lenders have agreed, upon the terms
and conditions set forth therein, to amend and restate the Original
Agreement and to make available to the Borrower revolving credit
loans in the maximum principal amount of up to $150,000,000 (the
"Loans"); and
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000
(x) The term "Obligations" appearing in the Security
Agreement shall be and hereby is amended to also include as part of
its meaning when used therein all obligations and liabilities of the
Borrower under the Amended and Restated Credit Agreement and the Loan
Documents described therein.
(c) The term "Agent" appearing in the Security Agreement
shall be and hereby is amended to mean when used therein The Bank of
Tokyo-Mitsubishi, Ltd., as Collateral Agent.
(d) Section 2(c) of the Security Agreement is hereby amended
by deleting from such Section 2(c) the phrase "the Lockbox Account,
the Borrower's Corporate Account, the Disbursements and the LOC Cash
Collateral Accounts" and inserting in lieu thereof the following
phrase: "all bank accounts in which the Borrower has or may have an
interest."
(e) Sections 6.14, 6.15 and 6.16 of the Security Agreement
are hereby amended by deleting said Sections in their entirety and
inserting in lieu thereof the following:
6.14. GOVERNING LAW; VENUE; WAIVER OF TRIAL BY JURY.
(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
FLORIDA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND
DELIVERY OUTSIDE SUCH STATE.
(B) BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
HILLSBOROUGH, STATE OF FLORIDA AND UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, BORROWER EXPRESSLY WAIVES ANY OBJECTION THAT IT
MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO
THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING.
(C) BORROWER AGREES THAT SERVICE OF PROCESS
MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE
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SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED
MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED BY SECTION 12.2 OF THE CREDIT AGREEMENT, OR BY
ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C)
HEREOF SHALL PRECLUDE THE AGENTS OR ANY LENDER FROM
BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN
THE COURTS OF ANY PLACE WHERE BORROWER OR ANY OF
BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS
AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED
IN CONNECTION WITH THE FOREGOING, BORROWER AND THE AGENTS
ON BEHALF OF THE LENDERS HEREBY AGREE, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL
BY JURY IN SUCH ACTION OR PROCEEDING.
6.15. LEFT BLANK INTENTIONALLY
6.16. LEFT BLANK INTENTIONALLY
39. Representations and Warranties. In order to induce the Agents and
each of the other Lenders signatories hereto to enter into this Amendment
Agreement, the Borrower hereby represents and warrants that the Original
Agreement has been re-examined by the Borrower and that as of the date hereof:
(a) The representations and warranties made by the Borrower in the
Original Agreement (except that the financial statements of the
Borrower shall be those most recently furnished to the Administrative
Agent) are true on and as of the date hereof;
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(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower or any of its Subsidiaries
since the date of the most recent financial reports of the Borrower
delivered to the Administrative Agent, other than changes in the
ordinary course of business;
(c) The business and properties of the Borrower and each of its
Subsidiaries are not, and since the date of their most recent financial
reports delivered to the Administrative Agent, have not been, adversely
affected in any substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workers, flood,
embargo, riot, activities of armed forces, war or acts of God or the
public enemy, or cancellation or loss of any major contracts; and
(d) After giving effect to this Amendment Agreement no condition
exists which, upon the effectiveness of the amendment contemplated
hereby, would constitute a Default or an Event of Default on the part
of the Borrower under the Original Agreement or the Amended and
Restated Credit Agreement, either immediately or with the lapse of time
or the giving of notice, or both.
40. Conditions Precedent. The effectiveness of this Amendment Agreement
is subject to the receipt by the Administrative Agent of the following:
(a) eight counterparts of this Amendment Agreement duly executed by
all signatories hereto;
(b) opinion of counsel for the Borrower as to the authorization,
execution and delivery of this Amendment Agreement and the
enforceability of the same against the Borrower in accordance with its
terms;
(c) resolutions of the Board of Directors of the Borrower approving
this Amendment Agreement certified by the Secretary of the Borrower;
(d) an amount equal to the aggregate legal fees incurred by the
Agents in connection with the negotiation, review and execution of this
Amendment Agreement and the other documents related hereto; and
(e) copies of all additional agreements, instruments and documents
which the Agents may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of the Borrower relating to the matters provided for herein
shall be satisfactory to the Administrative Agent and its counsel.
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41. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that,
except as in this Amendment Agreement otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any party to the other. None of the terms or conditions of this Amendment
Agreement may be changed, modified, waived or canceled orally or otherwise,
except by writing, signed by all the parties hereto, specifying such change,
modification, waiver or cancellation of such terms or conditions, or of any
proceeding or succeeding breach thereof.
42. No Novation. Each of the parties hereto acknowledges that the
provisions of this Amendment Agreement and the Amended and Restated Credit
Agreement constitute amendments to, and not a novation of, the indebtedness of
the Borrower to the Lenders, and a modification of the terms of repayment and
security for such indebtedness. This Amendment Agreement and the Amended and
Restated Credit Agreement do not constitute or effect either (i) a cancellation
or repayment of any indebtedness, or (ii) the transfer of property to secure
any indebtedness in addition to property previously transferred.
43. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Security Instruments and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
44. Counterparts. This Amendment Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
45. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. BORROWER HEREBY (i) SUBMITS TO THE
JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH EACH IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVE
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
46. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
47. Successors and Assigns. This Amendment Agreement shall be binding
upon and inure to the benefit of Borrower, the Lenders signatories hereto, the
Agents and their respective successors,
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assigns and legal representatives; provided, however, that the Borrower,
without the prior consent of the Lenders, may not assign any rights, powers,
duties or obligations hereunder.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
AMERISTEEL CORPORATION
WITNESS:
By:
----------------------------- ------------------------------
Name: Xxxxxx X. Xxxx
----------------------------- Title: Assistant Treasurer
Signature Page 1 of 2
180
NATIONSBANK, NATIONAL ASSOCIATION,
as Administrative Agent for the
Lenders
By:
--------------------------------
Name: Miles X. Xxxxxxx III
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD
as Collateral Agent and
Documentation Agent for the Lenders
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page 2 of 2
181
Schedule 1.1
Existing Letters of Credit
S-1
182
Schedule 4.6
Information Regarding Collateral
S-2
183
Schedule 7.4
Subsidiaries and Investments in Other Persons
S-3
184
Schedule 7.6
Indebtedness
S-4
185
Schedule 7.7
Liens
S-5
186
Schedule 7.8
Tax Matters
S-6
187
Schedule 7.10
Litigation
X-0
000
X-0
189
Schedule 7.18
Environmental
S-9
190
Schedule 8.5
Insurance
