EXHIBIT 10.e
REVOLVING CREDIT AND
REIMBURSEMENT AGREEMENT
BY AND AMONG
WORLD FUEL INTERNATIONAL, S.A.
AND
TRANS-TEC INTERNATIONAL, S.A.
AS BORROWERS,
WORLD FUEL SERVICES CORPORATION
AS GUARANTOR
NATIONSBANK, N.A.,
AS LENDER
NOVEMBER 30, 1998
TABLE OF CONTENTS
PAGE
----
ARTICLE I
Definitions
1.1. Definitions.................................................... 2
1.2. Rules of Interpretation........................................19
ARTICLE II
The Revolving Credit Facility
2.1. Loans..........................................................21
2.2. Payment of Interest............................................22
2.3. Payment of Principal...........................................23
2.4. Non-Conforming Payments........................................23
2.5. Notes..........................................................25
2.6. Reductions.....................................................25
2.7. Conversions and Elections of Subsequent Interest Periods.......25
2.8. Increase and Decrease in Amounts...............................26
2.9. Fees...........................................................26
2.10. Use of Proceeds................................................26
ARTICLE III
Letters of Credit
3.1. Letters of Credit..............................................27
3.2. Reimbursement..................................................27
3.3. Letter of Credit Facility Fees.................................29
3.4. Administrative Fees............................................29
ARTICLE IV
Change in Circumstances
4.1. Increased Cost and Reduced Return..............................30
4.2. Limitation on Types of Loans...................................31
4.3. Illegality.....................................................32
4.4. Treatment of Affected Loans....................................32
4.5. Compensation...................................................32
4.6. Taxes..........................................................32
ARTICLE V
Facility Guaranty
5.1. Facility Guaranty..............................................34
5.2. Payment........................................................34
5.3. Guaranty Absolute..............................................34
5.4. Reinstatement..................................................35
5.5. Waiver; Subrogation............................................35
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance..................................37
6.2. Conditions of Loans and Letter of Credit.......................38
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority.....................................40
7.2. Loan Documents.................................................40
7.3. Solvency.......................................................41
7.4. Subsidiaries and Stockholders..................................41
7.5. Ownership Interests............................................41
7.6. Financial Condition............................................41
7.7. Title to Properties............................................42
7.8. Taxes..........................................................42
7.9. Other Agreements...............................................42
7.10. Litigation.....................................................42
7.11. Margin Stock...................................................42
7.12. Investment Company.............................................43
7.13. Patents, Etc...................................................43
7.14. No Untrue Statement............................................43
7.15. No Consents, Etc...............................................43
7.16. Employee Benefit Plans.........................................44
7.17. No Default.....................................................45
7.18. Hazardous Materials............................................45
7.19. RICO...........................................................45
7.20. Year 2000 Compliance...........................................45
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ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc.........................................46
8.2. Maintain Properties............................................47
8.3. Existence, Qualification, Etc..................................47
8.4. Regulations and Taxes..........................................47
8.5. Insurance......................................................48
8.6. True Books.....................................................48
8.7. Right of Inspection............................................48
8.8. Observe all Laws...............................................48
8.9. Governmental Licenses..........................................48
8.10. Covenants Extending to Other Persons...........................48
8.11. Officer's Knowledge of Default.................................48
8.12. Suits or Other Proceedings.....................................48
8.13. Notice of Discharge of Hazardous Material or
Environmental Complaint......................................49
8.14. Environmental Compliance.......................................49
8.15. Indemnification................................................49
8.16. Further Assurances.............................................49
8.17. Employee Benefit Plans.........................................50
8.18. Continued Operations...........................................50
8.19. New Subsidiaries...............................................50
8.20. Year 2000 Compliance...........................................51
ARTICLE IX
Negative Covenants
9.1. Financial Covenants............................................52
9.2. Acquisitions...................................................52
9.3. Capital Expenditures...........................................52
9.4. Liens..........................................................52
9.5. Indebtedness...................................................53
9.6. Transfer of Assets.............................................55
9.7. Investments....................................................55
9.8. Merger or Consolidation........................................55
9.9. Restricted Payments............................................56
9.10. Transactions with Affiliates...................................56
9.11. Compliance with ERISA..........................................56
9.12. Fiscal Year....................................................57
9.13. Dissolution, etc...............................................57
9.14. Negative Pledge Clauses........................................57
9.15. Partnerships...................................................57
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ARTICLE X
Events of Default and Acceleration
10.1. Events of Default..............................................58
10.2. Lender to Act..................................................61
10.3. Cumulative Rights..............................................61
10.4. No Waiver......................................................61
10.5. Allocation of Proceeds.........................................61
ARTICLE XI
Miscellaneous
11.1. Participations.................................................62
11.2. Notices........................................................62
11.3. Setoff.........................................................63
11.4. Survival.......................................................63
11.5. Expenses.......................................................63
11.6. Amendments.....................................................64
11.7. Counterparts...................................................64
11.8. Termination....................................................64
11.9. Indemnification; Limitation of Liability.......................65
11.10. Severability...................................................65
11.11. Entire Agreement...............................................65
11.12. Agreement Controls.............................................65
11.13. Usury Savings Clause...........................................65
11.14. GOVERNING LAW; WAIVER OF JURY TRIAL............................66
EXHIBIT A Notice of Appointment (or Revocation) of
Authorized Representative..............................A-1
EXHIBIT B Form of Borrowing Notice.................................B-1
EXHIBIT C Form of Interest Rate Selection Notice...................C-1
EXHIBIT D Form of Revolving Note...................................D-1
EXHIBIT E Form of Opinion of Borrowers'Counsel.....................E-1
EXHIBIT F Compliance Certificate...................................F-1
EXHIBIT G Form of Guaranty Agreement...............................G-1
Schedule 1.1 Existing Letters of Credit...............................S-1
Schedule 7.4 Subsidiaries and Investments in Other Persons............S-1
Schedule 7.6 Indebtedness.............................................S-2
Schedule 7.7 Liens....................................................S-3
Schedule 7.8 Tax Matters..............................................S-4
Schedule 7.10 Litigation...............................................S-5
Schedule 7.18 Hazardous Materials......................................S-6
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REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT, dated as of November
30, 1998 (the "Agreement"), is made by and
WORLD FUEL INTERNATIONAL, S.A., a corporation organized and existing
under the laws of Costa Rica ("WFI"), with its principal place of business in
Miami Springs, Florida;
TRANS-TEC INTERNATIONAL, S.A., a corporation organized and existing
under the laws of Costa Rica ("TTI" and collectively with WFI the "Borrowers"
and individually a "Borrower") with its principal place of business in Miami
Springs, Florida;
WORLD FUEL SERVICES CORPORATION, a Florida corporation ("WFS") with its
principal place of business in Miami Springs, Florida, and owner of all of the
issued and outstanding capital stock of each of the Borrowers;
NATIONSBANK, N.A., a national banking association organized and
existing under the laws of the United States, as a Lender (the "Lender");
W I T N E S S E T H:
WHEREAS, the Borrowers have requested and the Lender has agreed,
subject to terms and conditions of this Agreement, to make available to the
Borrowers a revolving credit facility of up to $5,000,000, the proceeds of which
are to be used for working capital, capital expenditures and other general
corporate purposes and which shall include a letter of credit facility of up to
$5,000,000 for the issuance of documentary and standby letters of credit; and
WHEREAS, as a condition to making the facility available the Lender has
required that WFS guaranty payment of the obligations of the Borrowers arising
hereunder;
NOW, THEREFORE, the Borrowers, WFS and the Lender hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1. 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 substantially all of the assets of such Person or of a line or lines
of business conducted by such Person.
"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 either Borrower; or (ii) which beneficially
owns or holds 20% or more of any class of the outstanding voting stock
(or in the case of a Person which is not a corporation, 20% or more of
the equity interest) of either Borrower; or 20% or more of any class of
the outstanding voting stock (or in the case of a Person which is not a
corporation, 20% or more of the equity interest) of which is
beneficially owned or held by a 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.
"Applicable Margin" means that percent per annum set forth
below, which shall be based upon the Consolidated Fixed Charge Coverage
Ratio for the Four-Quarter Period most recently ended as specified
below:
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APPLICABLE
MARGIN
CONSOLIDATED FIXED EURODOLLAR
CHARGE COVERAGE RATIO RATE
--------------------- ----------
(a) Greater than or equal
to 7.00 to 1.0 .50%
(b) Greater than or equal
to 6.00 to 1.00 but
less than 7.00 to 1.00 .55%
(c) Greater than or equal
to 5.00 to 1.00 but
less than 6.00 to 1.00 .65%
(d) Greater than or equal
to 3.50 to 1.00 but
less than 5.00 to 1.00 .75%
(e) Greater than or equal
to 1.35 to 1.00 but
less than 3.50 to 1.00 1.00%
The Applicable Margin shall be established at the end of each fiscal
quarter of WFS (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 Lender pursuant to SECTION 8.1(A)(II) and SECTION 8.1(B)(II),
subject to review and approval of such computations by the Lender, and
shall be effective commencing on the date following the date such
certificate is received (or, if earlier, the date such certificate was
required to be delivered) until the date following the date on which a
new certificate is delivered or is required to be delivered, whichever
shall first occur.
"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Fixed Charge Coverage
Ratio for the Four-Quarter Period most recently ended as specified
below:
3
APPLICABLE
CONSOLIDATED FIXED UNUSED
CHARGE COVERAGE RATIO FEE
--------------------- ----------
(a) Greater than or equal
to 7.00 to 1.0 .15%
(b) Greater than or equal
to 6.00 to 1.00 but
less than 7.00 to 1.00 .18%
(c) Greater than or equal
to 5.00 to 1.00 but
less than 6.00 to 1.00 .20%
(d) Greater than or equal
to 3.50 to 1.00 but
less than 5.00 to 1.00 .25%
(e) Greater than or equal
to 1.35 to 1.00 but
less than 3.50 to 1.00 .375%
The Applicable Unused Fee shall be established at the end of each
fiscal quarter of WFS (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 Lender pursuant to SECTION 8.1(A)(II) and SECTION
8.1(B)(II), subject to review and approval of such computations by the
Lender and shall be effective commencing on the date following the date
such certificate is received (or, if earlier, the date such certificate
was required to be delivered) until the date following the date on
which a new certificate is delivered or is required to be delivered,
whichever shall first occur.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by either of the Borrowers and WFS from
time to time and delivered to the Issuing Bank to support the issuance
of Letters of Credit.
"Authorized Representative" means any of the President,
Executive Vice President, Chief Financial Officer or Chairman of the
Board of Directors of WFI, or any other Person expressly designated by
the Board of Directors of WFI (or the appropriate committee thereof) as
an Authorized Representative of the Borrowers, as set forth from time
to time in a certificate in the form of EXHIBIT A.
4
"Base Rate" means the per annum rate of interest equal to the
greater of (i) the Prime Rate or (ii) the Federal Funds Effective Rate
plus one-half of one percent (1/2%). Any change in the Base RatE
resulting from a change in the Prime Rate or the Federal Funds
Effective Rate shall become effective as of 12:01 A.M. of the Business
Day on which each such change occurs. The Base Rate is a reference rate
used by the Lender in determining interest rates on certain loans and
is not intended to be the lowest rate of interest charged on any
extension of credit to any debtor.
"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 made to
satisfy Reimbursement Obligations arising from a drawing under a Letter
of Credit.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrowers' Account" means a demand deposit account with the
Lender, which may be maintained at one or more offices of the Lender.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility, in the form of EXHIBIT B.
"Business Day" means, (i) with respect to any Base 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 WFS and its
Subsidiaries, for any period the SUM of (without duplication) (i) all
expenditures (whether paid in cash or accrued as liabilities) by WFS or
any Subsidiary during such period for items that would be classified as
"property, plant or equipment" or comparable items on the balance sheet
of WFS 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 Lender 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 WFS 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.
5
"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.
"Closing Date" means the date as of which this Agreement is
executed by the Borrowers, WFS and the Lender 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.
"Consistent Basis" means, in reference to the application of
GAAP, that the accounting principles observed in the period referred to
are comparable in all material respects to those applied in the
preparation of the audited financial statements of WFS referred to in
SECTION 7.6(A).
"Consolidated Capitalization" means, at any time at which the
amount thereof is to be determined, the sum of Consolidated Funded
Indebtedness plus Consolidated Shareholders' Equity.
"Consolidated Current Liabilities" means, the aggregate amount
carried as current liabilities on the books of WFS and its
Subsidiaries, on a consolidated basis and after eliminating all
intercompany items, determined in accordance with GAAP applied on a
Consistent Basis, LESS any such amount constituting (i) Obligations of
the Borrowers incurred pursuant to this Agreement and (ii) obligations
of WFS under the WFS Credit Agreement.
"Consolidated EBITDA" means, with respect to the WFS 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) provisions for
income taxes, (iv) depreciation, and (v) amortization, all determined
on a consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to the WFS and its Subsidiaries for any Four-Quarter Period ending on
the date of computation thereof, the ratio of (i) the sum, for such
period, of Consolidated EBITDA, MINUS capital expenditures to(ii)
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to WFS and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the SUM of, without duplication, (i) Consolidated
Interest Expense,(ii) Current Maturities of Long-Term Debt (including
all Capital Lease obligations), and (iii) all cash dividends and
distributions paid during such period (regardless of when declared) on
any shares of capital stock of the Borrower then outstanding, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
6
"Consolidated Funded Indebtedness" means, at any time as of
which the amount thereof is to be determined, (i) all Indebtedness for
Money Borrowed (excluding from the computation thereof Consolidated
Current Liabilities other than Current Maturities of Long-Term Debt),
PLUS (ii) the face amount of all outstanding Standby Letters of Credit
issued for the account of WFS or any of its Subsidiaries and all
obligations (to the extent not duplicative) arising under such Letters
of Credit, all determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of WFS and
its Subsidiaries, including without limitation (i) the amortization of
debt discounts, (ii) the amortization of all fees (including fees
payable in respect of any Rate Hedging Obligation) payable in
connection with the incurrence of Indebtedness to the extent included
in 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 Net Income" means, for WFS and its Subsidiaries,
for any period of computation thereof, the amount which, in conformity
with GAAP, would be set forth opposite the caption "Net Income" (or any
like caption) on a consolidated statement of earnings of the Borrower
and its Subsidiaries.
"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 WFS and its Subsidiaries (determined on a consolidated
basis and excluding intercompany items among WFS and its Subsidiaries
and 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 income (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 book value of any treasury stock and the book value of any
stock subscription receivables, all as determined in accordance with
GAAP applied on a Consistent Basis.
"Consolidated Tangible Net Worth" means, as of any date on
which the amount thereof is to be determined, Consolidated
Shareholders' Equity MINUS the net book value of all assets which would
be treated as intangible assets, all as determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Contingent Obligation" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement
to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss)
the Indebtedness of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of
dividends or other distributions upon the shares of any other Person.
The amount of any person's obligation under any Contingent Obligation
shall
7
(subject to any limitation set forth therein) be deemed to be the
outstanding principal amount (or maximum principal amount, if larger)
of the Indebtedness guaranteed thereby.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to SECTION 2.7 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 SECTION 2.7 or ARTICLE IV of one Type of Loan
into another Type of Loan.
"Credit Party" means, collectively, each of the Borrowers and
WFS.
"Current Maturities of Long-Term Debt" means, with respect to
Indebtedness for Money Borrowed that matures more than one year from
the date of its creation or matures within one year of the date of its
creation but is renewable or extendable, at the option of WFS or any
Subsidiary, to a date more than one year from the date of its creation,
all payments in respect thereof that are required to be made within one
year from the date of any determination thereof.
"Default" means any of the occurrences set forth as such in
SECTION 10.1 which, upon the expiration of any applicable grace period,
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 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 Base Rate Loans,
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.
"Documentary Letters of Credit" means the documentary letters
of credit issued by the Issuing Bank for the account of either Borrower
upon the terms and conditions of this Agreement.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Lender:
(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 92 days following
the
8
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 the Lender or certificates of deposit maturing within one
year days 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" or better by Xxxxx'x;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(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 either Borrower or any of its ERISA Affiliates or is
assumed by either Borrower or any of its ERISA Affiliates in connection
with any Acquisition or (ii) has at any time been maintained for the
employees of either 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, 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.
9
"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 either 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.
"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- Eurodollar Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in SECTION 10.1, for which the applicable grace period, if any,
has expired.
"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
described on SCHEDULE 1.1 previously issued by the Issuing Bank under
the Prior Agreement.
"Facility Guaranty" means each Guaranty and Suretyship
Agreement between one or more Guarantors and the Lender delivered
pursuant to SECTION 8.19, as the same may be amended, modified or
supplemented.
"Facility Termination Date" means the date on which the
Revolving Credit Termination Date shall have occurred, no Letters of
Credit shall remain outstanding and the Borrowers shall have fully,
finally and irrevocably paid and satisfied all Obligations.
"Federal Funds Effective Rate" means, for any day, the rate
per annum (rounded upward to the nearest 1/100th 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 Effective Rate for
such day shall be such rate on such transactions on the next preceding
Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate quoted to the Lender on such day on such
transaction as determined by the Lender.
10
"Fiscal Year" means the twelve month fiscal period of WFS and
its Subsidiaries commencing on April 1 of each calendar year and ending
on March 31 of the next following calendar year.
"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.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of WFS 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.
"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 all obligations of WFS or any Subsidiary
directly or indirectly guaranteeing, or in effect guaranteeing, any
Indebtedness or other obligation of any other Person.
"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, disposal, treatment 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
11
Person by way of endorsements (other than for collection or deposit in
the ordinary course of business), all Contingent Obligations and
Letters of Credit, 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, lease obligations (other than pursuant to Capital Leases),
reserves for deferred income taxes and investment credits, other
deferred credits or reserves, or deferred compensation obligations.
"Indebtedness for Money Borrowed" means with respect to WFS
and its Subsidiaries on a consolidated basis, all indebtedness of WFS
or any of its Subsidiaries in respect of money borrowed, including
without limitation 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 without limitation conditional sales contracts or similar
title retention agreements).
"Interbank Offered Rate" means, for any Eurodollar Rate Loan
or Eurodollar Market Loan for the Interest Period applicable thereto,
the rate per annum (rounded upwards, if necessary, to the nearest
one-one hundredth (1/100) of one percent) appearing on Dow Xxxxx
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, for any Eurodollar Rate Loan or Eurodollar Market 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 Borrowers' option, on the date one, two,
three or six months thereafter as notified to the Lender 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 Lender of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest Period,
the 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 end
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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 with respect to any Loans
shall extend past the Stated Termination Date; and
(v) there shall not be more than five (5) 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 C.
"Issuing Bank" means NationsBank as issuer of Letters of
Credit under ARTICLE III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof among the Borrowers and the Issuing Bank, as
amended, modified or supplemented from time to time.
"Lending Office" means the Lending Office of the Lender
designated on the signature pages hereof or such other office of the
Lender (or of an affiliate of the Lender) as the Lender may from time
to time specify to the Authorized Representative as the office by which
its Loans are to be made and maintained.
"Letters of Credit" means, collectively, all Documentary
Letters of Credit, and all Standby Letters of Credit, advancing credit
or securing an obligation on behalf of either or both of the Borrowers.
"Letter of Credit Commitment" means an amount not to exceed
$5,000,000.
"Letter of Credit Facility" means the facility described in
ARTICLE III hereof providing for the issuance by the Issuing Bank for
the account of either or both of the Borrowers of Letters of Credit in
an aggregate stated amount at any time outstanding not exceeding the
Total Letter of Credit Commitment.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount remaining undrawn under all Letters
of Credit plus Reimbursement Obligations then outstanding.
13
"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.
"Loan Documents" means this Agreement, the Note, 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 the
Lender 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.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Borrowers and their Subsidiaries, taken as a whole,
(ii) the ability of the Borrowers or any of their Subsidiaries 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 Lender under any Loan Document or the validity,
legality or enforceability thereof (including for purposes of clauses
(ii) and (iii) the imposition of burdensome conditions thereon);
provided, however, that the termination of the aviation joint venture
in Ecuador shall not be deemed to have a Material Adverse Effect.
"Material Contracts" means, collectively, any contract, lease,
agreement or commitment of either of the Borrowers or any Subsidiary,
including, without limitation, any fuel purchase agreements, the
expiration or termination of which could result in a Material Adverse
Effect.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which either of the Borrowers 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
14
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 Xxxxx'x.
"Note" means the promissory note of the Borrowers evidencing
Loans executed and delivered to the Lender substantially in the form of
EXHIBIT D.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrowers with respect to (i) the principal and
interest on the Loans as evidenced by the Note, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrowers to the Lender which arise under a Swap
Agreement, and (iv) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrowers to the
Lender hereunder, under any one or more of the other Loan Documents or
with respect to the Loans.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings and Revolving Credit Outstandings on such date.
"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 either of the
Borrowers or any of their ERISA Affiliates or is assumed by either of
the Borrowers or any of their ERISA Affiliates in connection with any
Acquisition or (ii) has at any time been maintained for the employees
of either of the Borrowers or any current or former ERISA Affiliate.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"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 Xxxxx'x 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.
15
"Prime Rate" means the rate of interest per annum announced
publicly by the Lender as its prime rate from time to time. The Prime
Rate is not necessarily the best or the lowest rate of interest offered
by the Lender.
"Principal Office" means the office of the Lender at
NationsBank, N.A., Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx, XX0 000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services, or such
other office and address as the Lender may from time to time designate.
"Prior Agreement" means the Amended and Restated Credit
Agreement dated February 21, 1997 between WFS and NationsBank, N.A.
(successor by merger of NationsBank, N.A. (South)).
"Rate Hedging Obligations" means any and all obligations of
WFS 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 the Lender, 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 the 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 Borrowers with respect to any Letter of Credit to
reimburse the Issuing Bank (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.
16
"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 Xxxxx'x or "A-1" by
S&P or "P-1" by Xxxxx'x.
"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 by member banks
of the Federal Reserve System (or any successor) by member banks 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 WFS or any of its Subsidiaries (other than those payable or
distributable solely to WFS) 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 WFS 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 WFS or any of
its Subsidiaries now or hereafter outstanding; and (d) any issuance and
sale of capital stock of any Subsidiary of WFS (or any option, warrant
or right to acquire such stock) other than to WFS.
"Revolving Credit Commitment" means the obligation of the
Lender to make Loans to the Borrowers up to an aggregate principal
amount at any one time outstanding equal to $5,000,000.
"Revolving Credit Facility" means the facility described in
ARTICLE II hereof providing for Loans to the Borrowers by the Lender in
the aggregate principal amount of the Revolving Credit Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Loans then
outstanding and all interest accrued thereon.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lender's
obligations pursuant to SECTION 10.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrowers may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings and Letter of Credit Outstandings
and cancellation of all Letters of Credit.
17
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx.
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which either of the
Borrowers 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 Contingent Obligations; 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.
"Standby Letters of Credit" means the standby letters of
credit issued by the Issuing Bank for the account of either of the
Borrowers upon the terms and conditions of this Agreement.
"Stated Termination Date" means November 29, 2003.
"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 WFS and/or by one
or more of WFS's Subsidiaries.
"Swap Agreement" means one or more agreements between either
of the Borrowers and any Person with respect to Indebtedness evidenced
by any or all of the Note, on terms mutually acceptable to Borrower and
such Person, which agreements create Rate Hedging Obligations;
PROVIDED, HOWEVER, that no such approval of the Lender shall be requird
to the extent such agreements are entered into between a Borrower and
the Lender.
"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 either of the Borrowers 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
18
Pension Plan; or (vi) the partial or complete withdrawal of either of
the Borrowers 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.
"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.
"WFS Credit Agreement" means the Revolving Credit and
Reimbursement Agreement dated of even date herewith between WFS and
NationsBank, N.A., as lender, as amended, modified or restated from
time to time.
"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.
1.2. 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.
19
(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.
(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 any Credit Party 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.
20
ARTICLE II
THE REVOLVING CREDIT FACILITY
2.1. LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, the Lender agrees to make Advances to the Borrowers under
the Revolving Credit Facility from time to time from the Closing Date
until the Revolving Credit Termination Date up to but not exceeding the
Revolving Credit Commitment, PROVIDED, however, that the Lender 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 Lender has accelerated the maturity of the
Note as a result of an Event of Default; PROVIDED further, however,
that immediately after giving effect to each such Advance, the
principal amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings shall not exceed the Revolving Credit Commitment. Within
such limits, the Borrowers 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 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
Loan that is a Eurodollar Rate Loan may, subject to the provisions of
SECTION 2.6, 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 4.4.
(b) AMOUNTS. Except as otherwise permitted by the Lender from
time to time, the aggregate unpaid principal amount of the Revolving
Credit Outstandings plus Letter of Credit Outstandings shall not exceed
at any time the Revolving Credit Commitment, and, in the event there
shall be outstanding any such excess, the Borrowers shall immediately
make such payments and prepayments as shall be necessary to comply with
this restriction. Each Loan hereunder, other than Base Rate Refunding
Loans, and each conversion under SECTION 2.7, shall be in an amount of
at least $100,000, and, if greater than $100,000, an integral multiple
of $100,000.
(c) ADVANCES. An Authorized Representative shall give the
Lender (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 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 10:30 A.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 Loan (other than 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 10:30 A.M. on the day of such proposed Loan.
Each such notice shall specify the amount of the borrowing, the type of
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.
21
(ii) Not later than 2:00 P.M. on the date specified
for each borrowing under this SECTION 2.1, the Lender shall,
pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances
available to the Borrowers by delivery of the proceeds thereof
to the Borrowers' Account or otherwise as shall be directed in
the applicable Borrowing Notice by the Authorized
Representative and reasonably acceptable to the Lender.
(iii) The Borrowers shall have the option to elect
the duration of the initial and any subsequent Interest
Periods and to Convert the Loans in accordance with SECTION
2.7. 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 five (5) different Interest Periods. If the
Lender 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 2.7, the Borrowers 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
Lender in accordance with SECTION 2.7.
(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
Borrowers shall not immediately fully reimburse the Issuing
Bank in respect of such drawing, (A) provided that the
conditions to making a Loan as herein provided shall then be
satisfied, the Reimbursement Obligation arising from such
drawing shall be paid to the Issuing Bank by the Lender
without the requirement of notice to or from the Borrowers
from immediately available funds which shall be advanced as a
Base Rate Refunding Loan by the Lender under the Revolving
Credit Facility, and (B) if the conditions to making a Loan as
herein provided shall not then be satisfied, the Lender shall
fund by payment to the Issuing Bank in immediately available
funds the purchase price from the Issuing Bank of the
Reimbursement Obligation. 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 2.7.
2.2. PAYMENT OF INTEREST. (a) The Borrowers shall pay interest to the
Lender on the outstanding and unpaid principal amount of each Loan for the
period commencing on the date of such Loan until such 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 amount shall not be paid when due
(at maturity, by acceleration or otherwise), all amounts outstanding hereunder
shall bear interest thereafter at the Default Rate.
(b) Interest on each 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 Loan shall be paid (i) quarterly in arrears not later
than three (3) Business Days following the last Business Day of each March,
June, September and December, commencing December 31, 1998 for each Base 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 first day of such Interest Period,
and (iii) upon payment in full of the principal amount of such Loan.
22
2.3. PAYMENT OF PRINCIPAL. The principal amount of each Loan shall be
due and payable to the 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 Borrowers shall pay to the Lender the additional
amount, if any, required under SECTION 4.4. All prepayments of Loans made by the
Borrowers shall be in the amount of $100,000 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 2.7.
2.4. NON-CONFORMING PAYMENTS. Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid to the Lender with respect to the Loans, shall be made to the Lender at
the Principal Office in Dollars and in immediately available funds before 12:30
P.M. on the date such payment is due. The Lender 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 Borrowers with the Lender.
(b) The Lender shall deem any payment made by or on behalf of
the Borrowers hereunder that is not made both in Dollars and in immediately
available funds and prior to 12:30 P.M. to be a non-conforming payment. Any such
payment shall not be deemed to be received by the Lender 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 Note
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.
(d) Notwithstanding any other provision of this Agreement,
each Borrower shall be jointly and severally liable as primary obligor and not
merely as surety for repayment of all Obligations arising under the Loan
Documents. Such joint and several liability shall apply to each Borrower
regardless of whether (i) any Loan was only requested by or made to the other
Borrower or the proceeds of any Loan were used only by the other Borrower, (ii)
any Letter of Credit was issued on the application of the other Borrower, (iii)
any interest rate election was made only by the other Borrower, or (iv) any
indemnification obligation or any other obligation arose only as a result of the
actions of the other Borrower; provided the liability of each Borrower under
this Agreement, the Notes and the other Loan Documents shall be limited to the
maximum amount of the Obligations for which such other Borrower may be liable
without violating any applicable fraudulent conveyance, fraudulent transfer or
comparable laws. Each Borrower shall retain any
23
right of contribution arising under applicable law against the other
Borrower as the result of the satisfaction of any Obligations;
provided, neither Borrower shall assert such right of contribution
against the other Borrower until the Obligations shall have been paid
in full.
Without limiting the foregoing, each Borrower hereby irrevocably,
absolutely and unconditionally guarantees the full and punctual payment or
performance when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all Obligations of the other
Borrower owing to Lender. This guarantee constitutes a guaranty of payment and
not of collection. The liability of each Borrower under the immediately
preceding two sentences shall be limited to the maximum amount for which such
other Borrower may be liable without violating any applicable fraudulent
conveyance, fraudulent transfer or comparable laws.
It is the intention of the parties that with respect to each Borrower
its obligations hereunder and under the other Loan Documents shall be absolute,
unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability
of this Agreement, any Note or any other Loan Document as to
the other Borrower;
(ii) the failure of the Lender
(A) to enforce any right or remedy
against the other Borrower or any other Person
under the provisions of this Agreement, any
Note, any other Loan Document or otherwise, or
(B) to exercise any right or remedy
against any guarantor of, or collateral
securing, any Obligations;
(iii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations, or any other extension, compromise or renewal of
any Obligations;
(iv) any reduction, limitation, impairment or
termination of any Obligations with respect to the other
Borrower or any other Person (including any guarantor) for any
reason including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and
each Borrower hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality,
nongenuineness, irregularity, compromise or unenforceability
of, or any other event or occurrence affecting, any
Obligations with respect to the other Borrower;
(v) any addition, exchange, release, surrender or
nonperfection of any collateral, or any amendment to or waiver
or release or addition of, or consent to departure from, any
guaranty, held by the Lender or any holder of any Note
securing any of the Obligations; or
(vi) any other circumstance which might otherwise
constitute a defense available to, or a legal or equitable
discharge of, the other Borrower, any surety or any guarantor.
24
Each Borrower agrees that its joint and several liability hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must be restored by the Lender or any holder of any Note, upon the insolvency,
bankruptcy or reorganization of either Borrower as though such payment had not
been made.
Each Borrower hereby expressly waives: (a) notice of the Lender's
acceptance of this Agreement; (b) notice of the existence or creation or
non-payment of all or any of the Obligations; (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever other than notices expressly
provided for in this Agreement and (d) all diligence in collection or protection
of or realization upon the Obligations or any thereof, any obligation hereunder,
or any security for or guaranty of any of the foregoing.
No delay on the Lender's part in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the
Lender of any right or remedy shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. No action of the Lender
permitted hereunder shall in any way affect or impair any of their rights or any
of their obligations to either of the Borrowers under this Agreement.
2.5. NOTES. Loans made or Continued by the Lender pursuant to the terms
and conditions of this Agreement shall be evidenced by the Note payable to the
order of the Lender in the amount of the Revolving Credit Commitment, which Note
shall be dated the Closing Date and shall be duly completed, executed and
delivered by the Borrowers.
2.6. REDUCTIONS. The Borrowers 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 Lender, effective upon receipt, to reduce the Revolving Credit
Commitment. Each such reduction shall be in the aggregate amount of $500,000 or
such greater amount which is in an integral multiple of $100,000, or the entire
remaining Revolving Credit Commitment, and shall permanently reduce the
Revolving Credit Commitment. Each reduction of the Revolving Credit Commitment
shall be accompanied by payment of the Loans to the extent that the principal
amount of Revolving Credit Outstandings plus Letter of Credit Outstandings
exceeds the 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 4.4.
2.7. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth below and in ARTICLE IV, the Borrowers may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Lender on or before 10:30 A.M.
on any Business Day, Convert all or a part of Eurodollar Rate Loans to Base Rate
Loans on the last day of the Interest Period for such Eurodollar Rate Loans; and
25
(b) provided that no Default or Event of Default shall have
occurred and be continuing and upon delivery, effective upon receipt, of a
properly completed Interest Rate Selection Notice to the Lender on or before
10:30 A.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 to begin on the last day of
the then current Interest Period for such Eurodollar Rate
Loans; and
(ii) Convert Base Rate Loans to Eurodollar Rate Loans
on any Business Day.
Each election and Conversion pursuant to this SECTION 2.7 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 IV.
2.8. INCREASE AND DECREASE IN AMOUNTS. The amount of the Revolving
Credit Commitment which shall be available to the Borrowers as Advances shall be
reduced by the aggregate amount of Outstanding Letters of Credit.
2.9. FEES.
(a) UNUSED FEE. For the period beginning on the Closing Date
and ending on the Revolving Credit Termination Date, the Borrowers agree to pay
to the Lender an unused fee equal to the Applicable Unused Fee multiplied by the
average daily amount by which the Revolving Credit Commitment exceeds the sum of
(i) Revolving Credit Outstandings plus (ii) Letter of Credit Outstandings. Such
fees shall be due in arrears not later than three (3) Business Days following
the last Business Day of each March, June, September and December commencing
December 31, 1998 to and on the Revolving Credit Termination Date (or such
earlier date as the Lenders refuse to fund hereunder).
(b) FACILITY FEE. The Borrowers agree to pay to the Lender,
for its own account a one time fee upon terms and conditions as provided in that
certain Fee Letter dated April 17, 1998 for agreeing to amend and extend the
terms of this Agreement.
2.10. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrowers to repay
Indebtedness outstanding under the Prior Agreement, for general working capital
needs and other corporate purposes, including the making of Acquisitions and
Capital Expenditures permitted hereunder.
26
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 either of the Borrowers to
issue from time to time for the account or benefit of either or both of the
Borrowers, 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 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 shall exceed the Revolving
Credit Commitment. No Letter of Credit shall have an expiry date (including all
rights of the Borrowers named in such Letter of Credit to require renewal) or
payment date occurring later than the earlier to occur of (A) one year after the
date of its issuance with respect to Standby Letters of Credit or one hundred
eighty days after the date of its issuance with respect to Documentary Letters
of Credit; or (B) the fifth Business Day prior to the Stated Termination Date.
Each Credit Party agrees that it is jointly and severally liable for all
Reimbursement Obligations and other obligations with respect to Letters of
Credit previously issued or to be issued for the account or benefit of either
Borrower as if and to the same extent as if such Credit Party were the sole
applicant therefor, and that any Letters of Credit issued on application of a
Borrower or the joint application of the Borrowers and WFS shall be subject to
all the terms of this Agreement, including applicable sublimits.
3.2. REIMBURSEMENT.
(a) The Borrowers 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) sufficient funds to pay all debts and
liabilities arising under any Letter of Credit. The Issuing Bank agrees to give
the Borrowers prompt notice of any request for a draw under a Letter of Credit.
The Issuing Bank may charge any account either 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
Borrowers; provided that to the extent permitted by SECTION 2.1(C)(IV) , amounts
shall be paid pursuant to Advances under the Revolving Credit Facility. The
Borrowers agree to pay the Issuing Bank interest on any Reimbursement
Obligations not paid when due hereunder at the Base Rate, or the maximum rate
permitted by applicable law, if lower, 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 Lender of any drawing under any Letter of Credit
promptly following the receipt by the Issuing Bank of such drawing.
27
(c) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE V, 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 or Borrowers 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. 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.
(d) The Borrowers agree that the 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.
(e) Without limiting the generality of the provisions of
SECTION 11.9, each Borrower hereby agrees to indemnify and hold harmless the
Issuing Bank from and against any and all claims and damages, losses,
liabilities, reasonable costs and expenses which the Issuing Bank may incur (or
which may be claimed against the Issuing Bank) 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 Borrowers shall not be required to
indemnify the Issuing Bank 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(E) shall survive repayment of the
Obligations, occurrence of the Revolving Credit Termination Date and expiration
or termination of this Agreement.
(f) Without limiting Borrowers' rights as set forth in SECTION
3.2(E), the obligation of the Borrowers 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 Borrowers 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
Letters of Credit, the obligation supported by the Letters 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;
28
(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
Lender 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
either of the Borrowers 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
Lender or any other Person;
(v) any draft, statement or any other document
presented under the Letters 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 Lender, with or without notice to or approval
by the Borrowers 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.
Nothing contained in this subsection (f) shall relieve the Issuing Bank of its
obligations under the Uniform Customs and Practices for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500.
3.3. LETTER OF CREDIT FACILITY FEES. The Borrowers shall pay to the
Issuing Bank a fee on the aggregate amount available to be drawn on each
outstanding Letter of Credit at a rate equal to (a) the Applicable Margin for
each outstanding Standby Letter of Credit, and (b) .10% per annum for each
outstanding Documentary Letter of Credit. Such fees shall be due with respect to
each Letter of Credit quarterly in advance on the first day of each January,
April, July and October, the first such payment to be made (x) on the Closing
Date with respect to Letters of Credit outstanding and to the extent such fees
have not yet been paid for such Letters of Credit with respect to the then
current calendar quarter, or (y) on the date of issuance of a Letter of Credit,
and thereafter on the first day of the calendar quarter occurring after either
the Closing Date or the date of issuance of a Letter of Credit as applicable.
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 Borrowers 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
Borrowers shall agree from time to time.
29
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1. 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 the Lender (or its
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 the Lender (or its 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 the Lender (or its 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
the Lender by the jurisdiction in which the Lender has its
principal office or such 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, the Lender (or its
Lending Office), including the Revolving Credit Commitment of
the Lender hereunder; or
(iii) shall impose on the Lender (or its 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 the Lender (or
its Lending Office) of making, Converting into, Continuing, or maintaining any
Eurodollar Rate Loans or to reduce any sum received or receivable by the Lender
(or its Lending Office) under this Agreement or the Note with respect to any
Eurodollar Rate Loans, then the Borrowers shall pay to the Lender on demand such
amount or amounts as will compensate the Lender for such increased cost or
reduction; PROVIDED that the Lender will not be entitled to any compensation for
any such increased cost or reduction if demand for payment thereof is made by
the Lender more than 180 days after the occurrence of the circumstances giving
rise to such claim. If the Lender requests compensation by the Borrowers under
this SECTION 4.1(A), the Borrowers may, by notice to the Lender, suspend the
obligation of the 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 4.4 shall be
applicable);
30
PROVIDED that such suspension shall not affect the right of the Lender to
receive the compensation so requested.
(b) If, after the date hereof, the 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 the Lender or any corporation controlling the Lender as a consequence
of the Lender's obligations hereunder to a level below that which the 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 Borrowers shall pay to the
Lender such additional amount or amounts as will compensate the Lender for such
reduction.
(c) The Lender shall promptly notify the Borrowers of any
event of which it has knowledge, occurring after the date hereof, which will
entitle the Lender to compensation pursuant to this Section and will designate a
different 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 the
Lender, be otherwise disadvantageous to it. The Lender claiming compensation
under this Section shall furnish to the Borrowers 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, the
Lender may use any reasonable averaging and attribution methods that the Lender
uses for its customers that are similarly situated to the Borrowers.
4.2. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Lender reasonably 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 Lender reasonably determines (which determination
shall be conclusive) that the Eurodollar Rate will not adequately and fairly
reflect the cost to the Lender of funding Eurodollar Rate Loans for such
Interest Period;
then the Lender shall give the Borrowers 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 Lender 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 Borrowers 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.
31
4.3. ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for the Lender or its Lending Office to
make, maintain, or fund Eurodollar Rate Loans hereunder, then the Lender shall
promptly notify the Borrowers thereof and the 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 the Lender may again
make, maintain, and fund Eurodollar Rate Loans (in which case the provisions of
SECTION 4.4 shall be applicable).
4.4. TREATMENT OF AFFECTED LOANS. If the obligation of the 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 4.1
or 4.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), the 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 4.3 hereof, on such earlier date as the Lender may specify
to the Borrower) and, unless and until the Lender gives notice as provided below
that the circumstances specified in SECTION 4.1 or 4.3 hereof that gave rise to
such Conversion no longer exist:
(a) to the extent that the Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to the 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 the
Lender as Loans of the Affected Type shall be made or Continued instead
as Base Rate Loans, and all Loans of the Lender that would otherwise be
Converted into Loans of the Affected Type shall be Converted instead
into (or shall remain as) Base Rate Loans.
4.5. COMPENSATION. Upon the request of the Lender, the Borrowers shall
pay to the Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of the Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(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 9.1) on a date other than the last day of the Interest
Period for such Loan; or
(b) any failure by the Borrowers for any reason (including,
without limitation, the failure of any condition precedent specified in ARTICLE
V 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.
4.6. TAXES. (a) Any and all payments by the Borrowers to or for the
account of the Lender 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 the Lender, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which
32
the Lender (or its Lending Office) 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 either of the Borrowers 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 the Lender, (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 4.6) the Lender 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
Lender, at its address referred to in SECTION 11.2, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrowers agree 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 Borrowers agree to indemnify the Lender 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 4.6) paid by the Lender and any liability (including penalties,
interest, and expenses) arising therefrom or with respect thereto.
(d) If either of the Borrowers is required to pay additional
amounts to or for the account of the Lender pursuant to this SECTION 4.6, then
the Lender will agree to use reasonable efforts to change the jurisdiction of
its Lending Office so as to eliminate or reduce any such additional payment
which may thereafter accrue if such change, in the judgment of the Lender, is
not otherwise disadvantageous to the Lender.
(e) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Lender the original or a certified copy
of a receipt evidencing such payment.
(f) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this SECTION 4.6 shall survive the termination of the Revolving
Credit Commitments and the payment in full of the Notes.
33
ARTICLE V
FACILITY GUARANTY
5.1. FACILITY GUARANTY. WFS hereby unconditionally, absolutely,
continually and irrevocably guarantees to the Lender the payment and performance
in full of (a) the Borrowers' 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 hereof, the Notes, and all other Loan Documents and all Rate Hedging
Obligations heretofore, now or at any time or times hereafter owing, arising,
due or payable from the Borrowers to the Lender, including without limitation
principal, interest, premium or fee (including, but not limited to, loan fees
and attorneys' fees and expenses); and (b) the Borrowers' 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 Borrowers hereunder and all other Loan Documents; and (c) the Borrowers'
prompt payment in full, when due or declared due and at all such times, of Rate
Hedging Obligations arising under Swap Agreements (collectively, the
"Guarantor's Obligations"); PROVIDED, HOWEVER, that the liability of WFS 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.
5.2. PAYMENT. If the Borrowers shall default in payment or performance
of any of the Obligations, 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 hereof, by
acceleration, or otherwise, or upon the occurrence of any Event of Default
hereunder that has not been cured or waived, then WFS shall, upon demand thereof
by the Lender or its successors or assigns AS OF THE DATE OF SUCH DEMAND, fully
pay to the Lender, subject to any restriction set forth in SECTION 5.1, an
amount equal to all of the Guarantor's Obligations then due and owing.
5.3. GUARANTY ABSOLUTE. The guaranty made under this ARTICLE V is a
guaranty of payment and not of collection. The Guarantor's Obligations shall be
absolute and unconditional irrespective of the validity, legality or
enforceability of this Agreement, the Note or any other Loan Document or any
other guaranty of the Borrowers' Obligations, and shall not be affected by any
action taken under this Agreement, the Note or any other Loan Document, any
other guaranty of the Borrowers' Obligations, or any other agreement between the
Lender and the Borrowers 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 Borrowers'
Obligations, or by the release or other disposal of any security for any of the
Borrowers' Obligations, or by the dissolution of the Borrowers or the
combination or consolidation of the Borrowers into or with another entity or any
transfer or disposition of any assets of the Borrowers or by any extension or
renewal of this Agreement, the Note or any other Loan Document, in whole or in
part, or by any modification, alteration, amendment or addition of or to this
Agreement, the Note or any other Loan Document, any other guaranty of the
Borrowers' Obligations, or any other agreement between any Secured Party and the
Borrowers or any other Person, or by any other circumstance whatsoever (with or
without notice to or knowledge
34
of WFS) which may or might in any manner or to any extent vary the risks of WFS,
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 the
guaranty made under this ARTICLE V shall be absolute and unconditional under any
and all circumstances and shall not be discharged except by payment as herein
provided.
5.4. REINSTATEMENT. WFS agrees that the guaranty made under this
ARTICLE V shall continue to be effective or be reinstated, as the case may be,
at any time payment received by the Lender under this Agreement is rescinded or
must be restored for any reason.
5.5. WAIVER; SUBROGATION.
(a) WFS hereby waives notice of the following events or
occurrences: (i) the Lender's heretofore, now or from time to time hereafter
making Advances and issuing Letters of Credit and otherwise loaning monies or
giving or extending credit to or for the benefit of the Borrowers, whether
pursuant to this Agreement or the Note or any other Loan Document or any
amendments, modifications, or supplements thereto, or replacements or extensions
thereof; (ii) the Lender or the Borrower heretofore, now or at any time
hereafter, obtaining, amending, substituting for, releasing, waiving or
modifying this Agreement, the Note or any other Loan Documents; (iii)
presentment, demand, default, non-payment, partial payment and protest; (iv) the
Lender heretofore, now or at any time hereafter granting to the Borrower (or any
other party liable to the Lender on account of the Borrower's Obligations) or to
any other Guarantor any indulgence or extensions of time of payment of the
Borrowers' Obligations, and (v) the Lender heretofore, now or at any time
hereafter accepting from either of the Borrowers, any other Guarantor or any
other Person, any partial payment or payments on account of the Borrowers'
Obligations or any collateral securing the payment thereof or the Agent
settling, subordinating, compromising, discharging or releasing the same.
(b) WFS hereby agrees that payment or performance by WFS of
the guaranty made under this ARTICLE V may be enforced by the Lender upon demand
by the Lender to WFS without the Lender being required, CPV expressly waiving
any right it may have to require the Lender, to (i) prosecute collection or seek
to enforce or resort to any remedies against the Borrower or any other
Guarantor, or (ii) seek to enforce or resort to any remedies with respect to any
security interests, Liens or encumbrances granted to the Lender by the Borrower,
any other Guarantor or any other Person on account of the Borrowers' Liabilities
or any guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED
TO BY WFS THAT DEMAND UNDER THIS ARTICLE V MAY BE MADE BY THE LENDER, AND THE
PROVISIONS HEREOF ENFORCED BY THE LENDER, EFFECTIVE AS OF THE FIRST DATE ANY
EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THIS AGREEMENT. The Lender shall
not 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.
(c) WFS further agrees that it shall have no right of
subrogation, reimbursement or indemnity, nor any right of recourse to security
for the Borrowers' Obligations. This waiver is expressly intended to prevent the
existence of any claim in respect to such reimbursement by WFS against the
estate of the Borrowers within the meaning of Section 101 of the Bankruptcy
Code, and
35
to prevent WFS from constituting a creditor of the Borrowers in respect of such
reimbursement within the meaning of Section 547(b) of the Bankruptcy Code in the
event of a subsequent case involving the Borrowers. If an amount shall be paid
to WFS on account of such subrogation rights at any time prior to termination of
this Agreement in accordance with the provisions of SECTION 11.8, such amount
shall be held in trust for the benefit of the Lender and shall forthwith be paid
to the Lender to be credited and applied upon the Guarantors' Obligations,
whether matured or unmatured, in accordance with the terms of this Agreement.
36
ARTICLE VI
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
6.1. CONDITIONS OF INITIAL ADVANCE. The obligation of the Lender to
make the initial Advance under the Revolving Credit Facility, and of the Issuing
Bank to issue any additional Letter of Credit, is subject to the conditions
precedent that:
(a) the Lender shall have received on the Closing Date, in
form and substance satisfactory to the Lender, the following:
(i) executed originals of each of this Agreement, the
Note, 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 Lender and satisfactory to
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., special counsel to the
Lender, substantially in the form of EXHIBIT E;
(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 Credit
Party executing the Loan Documents on behalf of such Credit
Party, certified by the secretary or assistant secretary of
such Credit Party;
(v) the charter documents of each Credit Party
certified as of a recent date by the Secretary or Assistant
Secretary of the Credit Party;
(vi) the bylaws of each Credit Party 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 Credit Party as to the due existence and
good standing of each Credit Party;
(viii) notice of appointment of the initial
Authorized Representative(s);
(ix) certificate of an Authorized Representative
dated the Closing Date demonstrating compliance with the
financial covenants contained in SECTIONS 9.1(A)
37
through 9.1(D) as of the most recently ended fiscal quarter
period, substantially in the form of EXHIBIT F;
(x) an initial Borrowing Notice, if any, and, if
elected by the Borrowers, Interest Rate Selection Notice;
(xi) evidence that all fees payable by the Borrower
on the Closing Date to the Lender have been paid in full;
(xii) such other documents, instruments, certificates
and opinions as the 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 Lender:
(i) there shall not have occurred or become known to
the Lender any event, condition, situation or status since the
date of the information contained in the financial and
business projections, budgets, pro forma data and forecasts
concerning WFS and its Subsidiaries delivered to the Lender
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 could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Credit 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 Credit
Parties is a party or by which any of them or their properties
is bound.
6.2. CONDITIONS OF LOANS AND LETTER OF CREDIT. The obligations of the
Lender to make any Loans, and the Issuing Bank to issue Letters of Credit,
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Lender shall have received a Borrowing Notice if
required by ARTICLE II;
(b) the representations and warranties of WFS, the Borrowers
and the Subsidiaries 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, 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) shall be deemed to
be those financial
38
statements most recently delivered to the Lender pursuant to SECTION 8.1 from
the date financial statements are delivered to the Lender in accordance with
such Section;
(c) in the case of the issuance of a Letter of Credit, either
of or both of the Borrowers 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;
(d) at the time of (and after giving effect to) each Advance
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 Loan, the aggregate principal balance of all
outstanding Loans shall not exceed the Revolving Credit
Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Letters of
Credit and Reimbursement Obligations for the Lender shall not
exceed the Letter of Credit Commitment;
(iii) a Loan or a Letter of Credit or renewal
thereof, the sum of Letter of Credit Outstandings plus
Revolving Credit Outstandings shall not exceed the Revolving
Credit Commitment.
39
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Each of WFS and the Borrowers 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) WFS, each Borrower and each Subsidiary is a corporation or
partnership duly organized and validly existing under the laws of the
jurisdiction of its formation;
(b) WFS, each 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) WFS and each 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) When executed and delivered, each of the Loan Documents to
which WFS, each Borrower or any Subsidiary is a party will be the legal, valid
and binding obligation or agreement, as the case may be, of WFS, the Borrower or
such Subsidiary, enforceable against WFS, each Borrower or 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).
7.2. LOAN DOCUMENTS. The execution, delivery and performance by WFS,
each Borrower and each Subsidiary of each of the Loan Documents to which it is a
party:
(a) have been duly authorized by all requisite corporate
action (including any required shareholder or partner approval) of WFS, each
Borrower and each Subsidiary 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 WFS, each
Borrower or any Subsidiary or its properties, or (iii) the charter documents,
partnership agreement or bylaws of WFS, each Borrower or any Subsidiary;
(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
40
event of default, under any contract (including without limitation any Material
Contract), indenture, agreement or other instrument or document to which WFS, a
Borrower or any Subsidiary is a party, or by which the properties or assets of
Borrower or any Subsidiary 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 WFS, a Borrower or any
Subsidiary.
7.3. SOLVENCY. WFS and each Subsidiary is Solvent after giving effect
to the transactions contemplated by the Loan Documents.
7.4. SUBSIDIARIES AND STOCKHOLDERS. WFS 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 WFS 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 WFS 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. Neither WFS nor the Borrowers own an 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) WFS has heretofore furnished to the Lender an audited
consolidated balance sheet of WFS and its Subsidiaries as of March 31, 1997 and
March 31, 1998 and the notes thereto and the related consolidated statements of
income, stockholders' equity and cash flows for the Fiscal Year then ended as
examined and certified by Xxxxxx Xxxxxxxx LLP and unaudited consolidated interim
financial statements of WFS and its Subsidiaries consisting of consolidated
balance sheets and related consolidated statements of income, stockholders'
equity and cash flows, in each case without notes, for and as of the end of the
three (3) month period ending June 30, 1998. Except as set forth therein, such
financial statements (including the notes thereto) present fairly the financial
condition of WFS and its Subsidiaries as of the end of such Fiscal Year and
three (3) month period and results of their operations and the changes in its
stockholders' equity for the Fiscal Year and interim period then ended, all in
conformity with GAAP applied on a Consistent Basis, subject however, in the case
of unaudited interim statements to year end audit adjustments;
41
(b) since June 30, 1998 there has been no material adverse
change in the condition, financial or otherwise, of WFS and its Subsidiaries
taken as a whole or in the businesses, properties, performance, prospects or
operations of WFS and its Subsidiaries taken as a whole, 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 WFS
nor any Subsidiary has incurred, other than in the ordinary course of business,
any material Indebtedness, Contingent Obligation or other commitment or
liability which remains outstanding or unsatisfied.
7.7. TITLE TO PROPERTIES. WFS and each of its Subsidiaries 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, WFS 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. Neither WFS 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 could 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, including without limitation any Material Contract, to which WFS,
either Borrower or any Subsidiary is a party, which default has, or if not
remedied within any applicable grace period could 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 WFS or either Borrower, threatened by or against WFS, either
Borrower or any Subsidiary or affecting WFS, either Borrower or any Subsidiary
or any properties or rights of WFS, either Borrower or any Subsidiary, which
could reasonably be likely to have a Material Adverse Effect.
7.11. MARGIN STOCK. The proceeds of the borrowings made hereunder will
be used by the Borrowers only for the purposes expressly authorized herein. None
of such proceeds will be used,
42
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 Borrower nor any agent acting in their 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. Neither Borrower nor any of its Subsidiaries
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
Borrowers and the performance by the Borrowers and their Subsidiaries 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. Each Borrower and each of its Subsidiaries 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.
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 WFS, the Borrowers or any Subsidiary in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Lender 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 WFS, or the Borrowers or any Subsidiary, nor any relationship between WFS,
the Borrowers 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 WFS, the Borrowers or
any Subsidiary as a condition to the execution, 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.
43
7.16. EMPLOYEE BENEFIT PLANS.
(a) The Borrowers 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 Borrowers 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 Borrowers 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 Borrowers nor any ERISA Affiliate has incurred any unpaid withdrawal
liability with respect to any Multiemployer Plan;
(d) 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 each of the Borrower's knowledge, each
Employee Benefit Plan subject to Title IV of ERISA, maintained by each of the
Borrowers or any ERISA Affiliate, has 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
44
(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. HAZARDOUS MATERIALS. Except as set forth on SCHEDULE 7.18, each
Borrower and each Subsidiary is in compliance with all applicable Environmental
Laws in all material respects. Neither Borrower nor any Subsidiary has been
notified of any action, suit, proceeding or investigation which, and neither
Borrower nor any Subsidiary is aware of any facts which, (i) calls into
question, or could reasonably be expected to call into question, compliance by
either Borrower or any Subsidiary with any Environmental Laws, (ii) which seeks,
or could reasonably be expected to form the basis of a meritorious proceeding,
to suspend, revoke or terminate any license, permit or approval necessary for
the generation, handling, storage, treatment or disposal of any Hazardous
Material, or (iii) seeks to cause, or could reasonably be expected to form the
basis of a meritorious proceeding to cause, any property of either Borrower or
any Subsidiary to be subject to any restrictions on ownership, use, occupancy or
transferability under any Environmental Law.
7.19. RICO. Neither 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.
7.20. 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 by not later than September 30, 1999, 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 Lender shall otherwise
consent in writing, WFS and each 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 WFS, deliver or cause to be
delivered to the Lender (i) a consolidated balance sheet of WFS and its
Subsidiaries of at the end of such Fiscal Year, and the notes thereto, and the
related consolidated statements of income, stockholders' equity and cash flows,
and the respective notes thereto, for such Fiscal Year, setting forth
comparative financial statements for the preceding Fiscal Year, 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 WFS and approved
by the Lender, which are unqualified as to the scope of the audit performed and
as to the "going concern" status of WFS and without any exception not acceptable
to the Lender, and (ii) a certificate of an Authorized Representative
demonstrating compliance with SECTIONS 9.1(A) through 9.1(D) and 9.3, which
certificate shall be in the form of EXHIBIT F and which shall include a
certification by an Authorized Representative that the Borrower and the
Subsidiaries are (x) current with all trade payables, except trade payables
contested in good faith in the ordinary course of business, and (y) in full
compliance with the established sublimits and terms of the Letters of Credit
issued pursuant this Agreement;
(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), deliver to the Lender (i) a consolidated balance sheet of WFS and its
Subsidiaries as of the end of such fiscal quarter, and the related consolidated
statements of income, stockholders' equity and cash flows for such fiscal
quarter and for the period from the beginning of the then current Fiscal Year
through the end of such reporting period, and accompanied by a certificate of an
Authorized Representative to the effect that such financial statements present
fairly the financial position of WFS 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, in conformity with the standards set
forth in SECTION 7.6(A) with respect 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);
(c) together with each delivery of the financial statements
required by SECTION 8.1(A)(I), deliver to the Lender a letter from WFS'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 Default or Event of Default
by WFS or the Borrowers 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;
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(d) promptly upon their becoming available to WFS, WFS shall
deliver to the Lender a copy of (i) all regular or special reports or effective
registration statements which WFS 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 WFS or any Subsidiary to its
shareholders, bondholders or the financial community in general, and (iii) any
management letter or other report submitted to WFS or any Subsidiary by
independent accountants in connection with any annual, interim or special audit
of WFS or any Subsidiary;
(e) as soon as practicable and in any event within 45 days
following the end of each of the first three fiscal quarters and within ninety
(90) days following each fiscal year end, deliver to the Lender an accounts
receivable aging report in form and detail substantially similar to that
furnished to the Lender prior to the Closing Date; and
(f) promptly, from time to time, deliver or cause to be
delivered to the Lender such other information regarding WFS, each of the
Borrower's and any Subsidiary's operations, business affairs and financial
condition as the Lender may reasonably request;
The Lender is hereby authorized to deliver a copy of any such financial
or other information delivered hereunder to the Lender (or any affiliate of the
Lender), to any Governmental Authority having jurisdiction over the Lender
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
Material Contracts, 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.
8.3. EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under SECTION 9.8, 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 WFS'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.
47
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,
(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
are maintained by similar businesses that are similarly situated, such insurance
policies to be in form reasonably satisfactory to the Lender.
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 the Lender to
visit and inspect any of the properties, corporate books and financial reports
of WFS, each of the Borrowers 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.
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.
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 any officer of WFS, or
either Borrower obtaining knowledge of any Default or Event of Default hereunder
or under any other obligation of WFS or either Borrower or any Subsidiary cause
such officer or an Authorized Representative to promptly notify the Lender of
the nature thereof, the period of existence thereof, and what action WFS, or
either Borrower or such Subsidiary proposes to take with respect thereto.
8.12. SUITS OR OTHER PROCEEDINGS. Upon any officer of either Borrower
or WFS obtaining knowledge of any litigation or other proceedings being
instituted against WFS, either Borrower or any Subsidiary, or any attachment,
levy, execution or other process being instituted against any assets of WFS,
either Borrower or any Subsidiary, making a claim or claims in an aggregate
amount greater
48
than $1,000,000 not otherwise covered by insurance, promptly deliver to the
Lender written notice thereof stating the nature and status of such litigation,
dispute, proceeding, levy, execution or other process.
8.13. NOTICE OF DISCHARGE OF HAZARDOUS MATERIAL OR ENVIRONMENTAL
COMPLAINT. Promptly provide to the Lender true, accurate and complete copies of
any and all notices, complaints, orders, directives, claims, or citations
received by WFS, either Borrower or any Subsidiary relating to any (a) violation
or alleged violation by WFS, either Borrower or any Subsidiary of any applicable
Environmental Law; (b) release or threatened release by WFS, either Borrower or
any Subsidiary, or at any facility or property owned or leased or operated by
WFS, either Borrower or any Subsidiary, of any Hazardous Material, except where
occurring legally; or (c) liability or alleged liability of WFS, either Borrower
or any Subsidiary for the costs of cleaning up, removing, remediating or
responding to a release of Hazardous Materials where, in any of the foregoing
events, the aggregate amount at any time involved exceeds $1,000,000.
8.14. ENVIRONMENTAL COMPLIANCE. If WFS, either Borrower or any
Subsidiary shall receive any letter, notice, complaint, order, directive, claim
or citation alleging that WFS, either Borrower or any Subsidiary has violated
any Environmental Law or is liable for the costs of cleaning up, removing,
remediating or responding to a release of Hazardous Materials, the Borrower
shall, within the time period permitted 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 unless and only during the period
that the applicability of the Environmental Law, the fact of such violation or
liability or what is required to remove or remedy such violation is being
contested by WFS, either Borrower or the applicable Subsidiary by appropriate
proceedings diligently conducted and all reserves with respect thereto as may be
required under Generally Accepted Accounting Principles, if any, have been made,
and no Lien in connection therewith shall have attached to any property of WFS,
either Borrower or the applicable Subsidiary which shall have become enforceable
against creditors of such Person.
8.15. INDEMNIFICATION. Without limiting the generality of SECTION 11.9,
WFS and each Borrower hereby agrees to indemnify and hold the Lender and its
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' fees and disbursements)
arising directly or indirectly from, out of or by reason of (a) the violation of
any Environmental Law by WFS or either Borrower or any Subsidiary or with
respect to any property owned, operated or leased by WFS or either Borrower or
any Subsidiary or (b) the handling, storage, treatment, emission or disposal of
any Hazardous Materials by or on behalf of WFS, either Borrower or any
Subsidiary or on or with respect to property owned or leased or operated by WFS,
either Borrower or any Subsidiary. The provisions of this SECTION 8.15 shall
survive the Facility Termination Date and expiration or termination of this
Agreement.
8.16. FURTHER ASSURANCES. At each Borrower's cost and expense, upon
request of the Lender, duly execute and deliver or cause to be duly executed and
delivered, to the Lender such further instruments, documents, certificates,
financing and continuation statements, and do and cause
49
to be done such further acts that may be reasonably necessary or advisable in
the reasonable opinion of the Lender to carry out more effectively the
provisions and purposes of this Agreement 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 Lender 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 either 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 either 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 by the due date; and
(b) Promptly and in any event within thirty (30) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "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 Lender a notice
specifying the nature thereof, what action either 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.
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. In the event of the acquisition or creation of
any Subsidiary of either Borrower, cause to be delivered to the Lender each of
the following within sixty (60) days of the acquisition or creation of such
Subsidiary.
(a) a Facility Guaranty executed by such Subsidiary
substantially in the form of EXHIBIT G;
(b) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Facility Guaranty provided for in this SECTION 8.19 and
addressed to the Lender, in form and substance reasonably acceptable to the
Lender (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
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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 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), such agreement 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);
(c) 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 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
Lender 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 by not later than September 30, 1999,
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 Lender shall otherwise consent in
writing, each of WFS and the Borrowers, to the extent set forth herein, will
not, nor will it permit any Subsidiary to:
9.1. FINANCIAL COVENANTS.
(a) CONSOLIDATED TANGIBLE NET WORTH. Permit at any time its
Consolidated Tangible Net Worth to be less than $61,000,000.
(b) CONSOLIDATED FUNDED INDEBTEDNESS TO CONSOLIDATED
CAPITALIZATION. Permit at any time the ratio of Consolidated Funded Indebtedness
to Consolidated Capitalization to be equal to or greater than .55 to 1.00;
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the
Consolidated Fixed Charge Coverage Ratio to be at any time less than 1.35 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 WFS 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 WFS shall
have furnished to the Lender (A) pro forma historical financial statements as of
the end of the most recently completed Fiscal Year of WFS giving effect to such
Acquisition and (B) a certificate in the form of EXHIBIT G 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 WFS or a wholly-owned Subsidiary, immediately upon
consummation of the Acquisition (or if assets are being acquired, the acquiror
shall be WFS or a wholly-owned Subsidiary), and (iv) the cost of acquisition
shall not exceed $25,000,000.
9.3. CAPITAL EXPENDITURES. Make or become committed to make Capital
Expenditures, excluding Costs of Acquisitions, which exceed in the aggregate in
any Fiscal Year of WFS $6,000,000 (on a noncumulative basis, with the effect
that amounts not expended in any Fiscal Year may not be carried forward to a
subsequent period).
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 WFS or any Subsidiary, other than
52
(a) Liens 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 WFS or any Subsidiary and which do not
materially detract from the value of the property to which they attach or
materially impair the use thereof to WFS or any Subsidiary;
(f) purchase money Liens to secure Indebtedness permitted
under SECTION 9.5(D) and incurred to purchase fixed assets, provided such
Indebtedness represents not less than 75% of the purchase price of such assets
as of the date of purchase thereof and no property other than the assets so
purchased secures such Indebtedness; and
(g) Liens arising in connection with Capital Leases permitted
under SECTION 9.5(D); provided that no such Lien shall extend to any Collateral
or to any other property other than the assets subject to such Capital Leases.
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; PROVIDED, none of the instruments and agreements evidencing or
governing such Indebtedness shall be amended, modified or supplemented after the
Closing Date to change any terms of
53
subordination, repayment or rights of conversion, put, exchange or other rights
from such terms and rights as in effect on the Closing Date;
(b) Indebtedness owing to the Lender in connection with this
Agreement, the Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) purchase money Indebtedness of the Borrowers described in
SECTION 9.4(F) and Indebtedness arising from Capital Leases entered into by the
Borrowers described in SECTION 9.4(G), collectively not to exceed an aggregate
outstanding amount at any time of $500,000;
(e) additional unsecured Indebtedness in an aggregate
outstanding amount at any time outstanding not to exceed $1,000,000;
(f) trade credit from vendors incurred in the ordinary course
of business and the guaranty thereof by the Guarantor and the bonding of such
Obligation;
(g) insurance notes payable;
(h) Indebtedness arising from Rate Hedging Obligations
(provided that such Indebtedness is incurred to limit risks of currency or
interest rate fluctuations to which the Borrowers are otherwise subject by
virtue of the operations of their business, and not for speculative purposes) of
the Borrowers in an aggregate notional amount, in the case of currency and
interest rate obligations and speculative fuel transaction not to exceed
$2,500,000 at any time; provided, however, that the Borrowers may enter into
non-speculative fuel heding transactions without limitation;
(i) Indebtedness of WFS under the WFS Credit Agreement; and
(j) Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, Indebtedness incurred under
clauses (a) and (d) of this SECTION 9.5, provided that the terms of any such
extension, renewal, refunding or refinancing Indebtedness (and of any agreement
or instrument entered into in connection therewith) are no less favorable to the
Lender than the terms of the Indebtedness as in effect prior to such action, and
provided further that (1) the aggregate principal amount of such extended,
renewed, refunded or refinanced Indebtedness shall not be increased by such
action, (2) the group of direct or contingent obligors on such Indebtedness
shall not be expanded as a result of any such action, and (3) immediately before
and immediately after giving effect to any such extension, renewal, refunding or
refinancing, no Default or Event of Default shall have occurred and be
continuing; PROVIDED that the incurring of any such Indebtedness does not cause,
create or result in the occurrence or continuation of a Default or Event of
Default hereunder.
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9.6. TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
any assets of either Borrower or any Subsidiary other than (a) dispositions of
assets in the ordinary course of business, (b) dispositions of property that is
substantially worn, damaged, obsolete or, in the judgment of the Borrowers, no
longer best used or useful in its or their business or that of any Subsidiary,
and (c) transfers of assets necessary to give effect to merger or consolidation
transactions permitted by SECTION 9.8, and (d) the disposition of Eligible
Securities in the ordinary course of management of the investment portfolio of
the Borrower and its Subsidiaries.
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 the Borrowers 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 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; and
(f) loans or investments in or to WFS or a Subsidiary of WFS
which is a Guarantor (as defined in the WFS Credit Agreement); and
(g) loans and investments in Subsidiaries which are not
Guarantors so long as the aggregate amount of such outstanding loans and
investments, including those described in clause (a) of this SECTION 9.7, shall
not exceed $250,000.
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 permitted under SECTION 9.6(A),
(B) AND (D)); PROVIDED, HOWEVER, (i) any Subsidiary of WFS or a Borrower may
merge or transfer all or substantially all of its assets into or consolidate
with WFS or a Borrower or any Guarantor, and (ii) any other Person may merge
into or consolidate with WFS or a Borrower or any Guarantor 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 Lender may
require to evidence or confirm its express assumption of the obligations and
liabilities of its predecessor entities under the Loan Documents.
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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 Borrowers may pay dividends or make distributions to WFS.
9.10. TRANSACTIONS WITH AFFILIATES. Other than transactions permitted
under SECTIONS 9.7 and 9.8, 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 either Borrower, except (a) that such Persons may render services to the
Borrowers or their 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 Borrowers or any Subsidiary may render services
to such Persons for compensation at the same rates generally charged by the
Borrowers or such Subsidiary and (c) in either case in the ordinary course of
business and pursuant to the reasonable requirements of either of the Borrower's
(or any Subsidiary's) business consistent with past practice of the Borrowers
and its Subsidiaries and upon fair and reasonable terms no less favorable to the
Borrowers (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 either of the Borrowers or any ERISA
Affiliate to the PBGC; or
(b) 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
(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 either 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 may be imposed; 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 liability to the
Borrower or any ERISA Affiliate or increase the obligation of either Borrower or
any ERISA Affiliate to a Multiemployer Plan; or
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(g) fail, or permit either 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. NEGATIVE PLEDGE CLAUSES. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Lender pursuant to this
Agreement or any other Loan Documents which prohibits or limits the ability of
any of WFS, the Borrowers 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 subject to any Lien
permitted by this Agreement and not released after the date hereof, when such
prohibition or limitation is by its terms effective only against the assets
subject to such Lien.
9.15. PARTNERSHIPS. Become a general partner in any general or limited
partnership except a partnership which complies with the provisions of SECTION
8.07(H).
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ARTICLE X
EVENTS OF DEFAULT AND ACCELERATION
10.1. EVENTS OF DEFAULT. (A) 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 the Lender on the date 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, 8.12, 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 Note (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 Lender or an Authorized Representative of the Borrowers has actual
knowledge 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 Lender or
delivered to the Lender 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 Lender), or if without the
written consent of the Lender, 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 Lender); 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 Obligations (other than the Loans and other
Obligations) of either or both of the Borrowers or any 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
58
pursuant to which any such Indebtedness or Rate Hedging Obligation may have been
issued, created, assumed, guaranteed or secured by the Borrowers 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
Borrowers 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 Lender by or on behalf of the Borrowers
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 either Borrower or any Subsidiary 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 either Borrower or any Subsidiary 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 approve a petition
filed against either Borrower or any Subsidiary seeking liquidation,
reorganization or arrangement 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 petition is not dismissed within 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 either Borrower or any
Subsidiary 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 either Borrower or any Subsidiary any proceeding or petition seeking
reorganization, arrangement 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 either Borrower or any Subsidiary takes any action to indicate
its consent to or approval of any such proceeding or petition; or
(i) if (i) one or more final 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 either Borrower or any
Subsidiary, or (ii) there is any attachment, 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, injunction
59
or execution remains unpaid, unstayed, undischarged, unbonded or undismissed for
a period of thirty (30) days; or
(j) if either Borrower or any Subsidiary shall, other than in
the ordinary course of business (as determined by past practices), or, except as
specifically permitted by this Agreement, 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;
(k) if either (i) all of the capital stock of either Borrower
shall not be owned and controlled by WFS, or (ii) WFS shall not at all times
have the sole right to vote all of the capital stock of both Borrowers; or
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents; or
(m) if there shall occur and not be waived an Event of Default
under the WFS Agreement;
(B) 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 Lender may declare any obligation of the Lender and the Issuing Bank to make
further Loans or to issue additional Letters of Credit terminated, whereupon the
obligation of the Lender to make further Loans and of the Issuing Bank to issue
additional Letters of Credit, hereunder shall terminate immediately, and (ii)
the Lender, at its option, declare by notice to the Borrowers 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 Borrowers to the
Lender, 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 Lender to make 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 Lender or notice to the Lender;
(b) the Borrowers shall, upon demand of the Lender, deposit
cash with the Issuing Bank 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 such amounts shall be
held by the Issuing Bank pursuant to the terms of the LC Account Agreement; and
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(c) the Lender shall have all of the rights and remedies
available under the Loan Documents or under any applicable law.
10.2. LENDER TO ACT. In case any one or more Events of Default shall
occur and not have been waived, the Lender may proceed to protect and enforce
its 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
Lender 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 among the Borrowers and the
Lender or any failure or delay on the part of the Lender 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 Note has been accelerated pursuant to
ARTICLE X hereof, all payments received by the Lender hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrowers hereunder, shall be applied by the Lender in the following order:
(a) amounts due to the Lender pursuant to SECTIONS 2.9, 3.3,
3.4 AND 11.5;
(b) payments of interest on Loans and Reimbursement
Obligations;
(c) payments of principal of Loans and Reimbursement
Obligations;
(d) payments of cash amounts to the Lender in respect of
outstanding Letters of Credit pursuant to SECTION 10.1(B);
(e) amounts due to the Lender pursuant to SECTIONS 3.2(E),
8.15 and 11.9;
(f) payments of all other amounts due under any of the Loan
Documents, if any;
(g) amounts due to any of the Lender in respect of Obligations
consisting of liabilities under any Swap Agreement with the Lender; and
(h) any surplus remaining after application as provided for
herein, to the Borrowers or otherwise as may be required by applicable law.
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ARTICLE XI
MISCELLANEOUS
11.1. PARTICIPATIONS. The Lender may sell participations at its expense
to one or more banks or other entities as to all or a portion of its rights and
obligations under this Agreement; PROVIDED, that (i) the Lender's obligations
under this Agreement shall remain unchanged, (ii) the Lender shall remain solely
responsible to the Borrowers for the performance of such obligations, (iii) the
Lender shall remain the holder of any Note issued to it for the purpose of this
Agreement, (iv) such participations shall be in a minimum amount of $1,000,000
and, if greater, an amount which is an integral multiple of $1,000,000, (v) the
Borrowers shall continue to deal solely and directly with the Lender in
connection with the Lender's rights and obligations under this Agreement and
with regard to any and all payments to be made under this Agreement; PROVIDED,
that the participation agreement between the Lender and its participants may
provide that the Lender will obtain the approval of such participant prior to
the Lender's agreeing to any amendment or waiver of any provisions of any Loan
Document which would (A) extend the maturity of the Note, (B) reduce the
interest rates hereunder or (C) increase the Revolving Credit Commitment or
Letter of Credit Commitment, and (vi) the sale of any such participations which
require either Borrower to file a registration statement with the United States
Securities and Exchange Commission or under the securities regulations or laws
of any state shall not be permitted.
11.2. 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:
(a) if to the Borrowers:
c/o World Fuel Services Corporation
000 Xxxxx Xxxxx Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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(b) if to the Lender:
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit Support
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to any Guarantor, at the address set forth in
SECTION 14 of the Facility Guaranty executed by such
Guarantor.
11.3. SETOFF. From and after the occurrence of a Default or an Event of
Default the Lender may set off the obligations and liabilities of the Borrowers
against any and all monies then owed by the Lender to either Borrower in any
capacity whatsoever whether or not then due and the Lender shall be deemed to
have exercised its right to set off immediately at the time its right to elect
such set off accrues even though no charge is made or entered on the books of
the Lender at that time and the same is made subsequent thereto; the Lender may
proceed against either or both of the Borrowers' bank account(s), certificates
of deposit or any other investments and the Subsidiary's bank account(s) and
certificates of deposit or any other investments. For the purposes of this
paragraph, all remittances and property shall be deemed to be in the possession
of the Lender as soon as the same may be put in transit to it by mail or carrier
or by other bailee.
11.4. SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lender of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lender of this Agreement and the Note and shall continue in full force and
effect so long as any of Obligations remain outstanding or the Lender has any
commitment hereunder or either 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 Borrowers which are contained in the Loan Documents shall
inure to the benefit of the successors and permitted assigns of the Lender.
11.5. EXPENSES. The Borrowers agree (a) to pay or reimburse the Lender
for all its reasonable out-of-pocket costs and expenses incurred in connection
with the preparation, negotiation and execution of, and any amendment,
supplement or modification to, any of the Loan Documents (including due
diligence expenses and travel expenses relating to closing), and the
consummation of the transactions contemplated thereby, including the reasonable
fees, which shall not exceed $20,000 (including legal fees incurred in
connection with the WFS Credit Agreement), and disbursements of counsel to the
Lender, (b) to pay or reimburse the Lender for all of its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
the Loan Documents, including the reasonable fees and disbursements of their
counsel and any payments in indemnification or otherwise payable by the Lender
pursuant to the Loan Documents, and (c) to pay, indemnify and hold the Lender
harmless from any and all recording and filing fees and any and all liabilities
with
63
respect to, or resulting from any failure to pay or delay in paying,
documentary, stamp, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of any
of the Loan Documents, or consummation of any amendment, supplement or
modification of, or any waiver or consent under or in respect of, any Loan
Document.
11.6. AMENDMENTS. No amendment, modification or waiver of any provision
of any Loan Document and no consent by the Lender to any departure therefrom by
the Borrowers or any other Credit Party shall be effective unless such
amendment, modification or waiver shall be in writing and signed by the Lender,
shall have been approved by the Lender through its written consent, and the same
shall then be effective only for the period and on the conditions and for the
specific instances and purposes specified in such writing. No notice to or
demand on the Borrowers in any case shall entitle the Borrowers to any other or
further notice or demand in similar or other circumstances, except as otherwise
expressly provided herein. No delay or omission on the Lender's part in
exercising any 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.
11.7. 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.
11.8. TERMINATION. The termination of this Agreement shall not affect
any rights of the Borrowers or the Lender or any obligation of the Borrowers or
the Lender, 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 Lender 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
Borrowers have furnished the Lender with an indemnification satisfactory to the
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, the Lender is for any reason compelled to surrender 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 Borrowers shall be
liable to, and shall indemnify and hold the Lender harmless for, the amount of
such payment surrendered until the 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 Lender in reliance upon such payment, and any such contrary action so
taken shall be without prejudice to the Lender's rights under this Agreement and
shall be deemed to have been conditioned upon such payment having become final
and irrevocable.
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11.9. INDEMNIFICATION; LIMITATION OF LIABILITY. In consideration of the
execution and delivery of this Agreement by the Lender and the extension of
credit under the Loans, each Borrower hereby indemnifies, exonerates and holds
the Lender and its affiliates, officers, directors, employees, agents and
advisors (collectively, the "Indemnified Parties") free and harmless from and
against any and all claims, actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (collectively, the "Indemnified Liabilities") 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, or in connection with the
execution, delivery, enforcement, performance or administration of this
Agreement and the other Loan Documents, or any transaction financed or to be
financed in whole or in part, directly or indirectly, with the proceeds of any
Loan or Letter of Credit, whether or not such action is brought against the
Lender, the shareholders or creditors of the Lender or an Indemnified Party or
an Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated herein are consummated, except to the extent such
claim, damage, loss, liability 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, and if and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrowers hereby agree to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The Borrowers agree 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 Credit Party, 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
resulted from such Indemnified Party's gross negligence or willful misconduct;
provided, however, in no event shall any Indemnified Party be liable for
consequential, indirect or special, as opposed to direct, damages.
11.10. 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.
11.11. 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, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.12. 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.
11.13. 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
65
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 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 Borrowers shall pay to the Lender 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 Lender and the Borrowers to conform
strictly to any applicable usury laws. Accordingly, if the Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at the Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrowers.
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 the 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.
11.14. 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 BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY AGREE AND
CONSENT 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 STATE OF FLORIDA, UNITED STATES OF AMERICA
AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWERS EXPRESSLY
WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER THEM AND THEIR PROPERTY BY, ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWERS HEREBY
IRREVOCABLY SUBMIT GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
66
(c) THE BORROWERS AGREE 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 BORROWERS PROVIDED IN SECTION 11.2, 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 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
BORROWERS OR ANY OF THE BORROWERS' PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE
BORROWERS HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVE, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER THEM AND THEIR PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(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 BORROWERS AND THE LENDER 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]
67
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.
WITNESS: WORLD SERVICES INTERNATIONAL, S.A.
B.M. XXXXXXXX By: /s/ XXXXXX XXXXXXX
------------------------- ------------------------------
Name: Xxxxxx Xxxxxxx
XXXXX X. XXXXXXX Title: Vice President & Chief
------------------------- Financial Officer
TRANS-TEC INTERNATIONAL, S.A.
WITNESS:
By: /s/ XXXXXX XXXXXXX
X.X. XXXXXXXX ------------------------------
------------------------ Name: Xxxxxx Xxxxxxx
Title: Vice President & Chief
XXXXX X. XXXXXXX Financial Officer
------------------------
CREDIT AGREEMENT
Page 1 of 2
NATIONSBANK, N.A.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Lending Office:
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit
Support
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
NationsBank, N.A.
ABA#000000000
Account No.: _____________________
Reference: World Fuel Services
Attention: _______________________
CREDIT AGREEMENT
Page 2 of 2
EXHIBIT A
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Revolving Credit and Reimbursement
Agreement dated as of November 30, 1998 (the "Agreement") by and among World
Fuel International, S.A., Trans-Tec International, S.A., each a corporation
organized and existing under the laws of Costa Rica (collectively, the
"Borrowers"), World Fuel Services Corporation, a Florida corporation, as
guarantor, and NationsBank, N.A., as Lender (the "Lender"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrowers hereby nominate, constitute and appoint 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 Borrowers to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
--------------------------------- -------------------- ------------------
Xxxxxx Xxxxxxx Vice President & /s/ XXXXXX XXXXXXX
--------------------------------- Chief Financial
Officer
---------------------------------
--------------------------------- -------------------- ------------------
---------------------------------
---------------------------------
Borrowers hereby revoke (effective upon receipt hereof by the Lender) the prior
appointment of ________________ as an Authorized Representative.
This the 30th day of November, 1998.
WORLD FUEL INTERNATIONAL, S.A.
By: /s/ XXXXXX XXXXXXX
---------------------------
Name: Xxxxxx Xxxxxxx
-------------------------
Title: Vice President & Chief
Financial Officer
------------------------
TRANS-TEC INTERNATIONAL, S.A.
By: /s/ XXXXXX XXXXXXX
---------------------------
Name: Xxxxxx Xxxxxxx
-------------------------
Title: Vice President & Chief
Financial Officer
------------------------
A-1
EXHIBIT B
Form of Borrowing Notice
To: NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit Support
Telefacsimile: (000) 000-0000
Reference is hereby made to the Revolving Credit and Reimbursement
Agreement dated as of November 30, 1998 (the "Agreement") by and among World
Fuel International, S.A., Trans-Tec International, S.A., each a corporation
organized and existing under the laws of Costa Rica (collectively, the
"Borrowers"), World Fuel Services Corporation, a Florida corporation, as
guarantor, and NationsBank, N.A., as Lender (the "Lender"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrowers through their Authorized Representative hereby give
notice to the Lender 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 $100,000 or if greater an integral multiple of $100,000, unless a
Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
The Borrowers hereby request that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrowers as follows: [INSERT
TRANSMITTAL INSTRUCTIONS].
The undersigned hereby certify 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
B-1
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.
WORLD FUEL INTERNATIONAL, S.A.
TRANS-TEC INTERNATIONAL, S.A.
BY:
------------------------------
Authorized Representative
DATE:
----------------------------
B-2
EXHIBIT C
Form of Interest Rate Selection Notice
To: NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit Support
Telefacsimile: (000) 000-0000
Reference is hereby made to the Revolving Credit and Reimbursement
Agreement dated as of November 30, 1998 (the "Agreement") by and among World
Fuel International, S.A., Trans-Tec International, S.A., each a corporation
organized and existing under the laws of Costa Rica (collectively, the
"Borrowers"), World Fuel Services Corporation, a Florida corporation, as
guarantor, and NationsBank, N.A., as Lender (the "Lender"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrowers through their Authorized Representative hereby give
notice to the Lender 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 $100,000 or if greater an integral multiple of $100,000, unless a
Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
WORLD FUEL INTERNATIONAL, S.A.
TRANS-TEC INTERNATIONAL, S.A.
BY:
------------------------------
Authorized Representative
DATE:
----------------------------
C-1
EXHIBIT D
Form of Revolving Note
Promissory Note
(Revolving Credit Facility)
SEE EXHIBIT 10.f
EXHIBIT E
Form of Opinion of Borrowers' Counsel
SEE ATTACHED.
E-1
[XXXXXX & XXXXX LETTERHEAD]
November 9, 1998
NationsBank, N.A.
NationsBank Xxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
RE: $5,000,000 REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT BY AND AMONG
NATIONSBANK, N.A., AS LENDER, WORLD FUEL INTERNATIONAL, S.A. AND
TRANS-TEC INTERNATIONAL, S.A., AS BORROWERS, AND WORLD FUEL SERVICES
CORPORATION, AS GUARANTOR
Ladies and Gentlemen:
We have acted as counsel to World Fuel International, S.A. ("WFI") and
Trans-Tec International, S.A. ("TTI"), each a Costa Rica corporation (WFI and
TTI are together referred to as the "Borrowers") and World Fuel Services
Corporation, a Florida corporation (the "Guarantor" and collectively with the
Borrowers, the "Credit Parties") in connection with a Revolving Credit Facility
of up to $5,000,000, including a $5,000,000 Letter of Credit Facility
constituting part of the Revolving Credit Facility, each being made available to
the Borrowers by you on this date pursuant to the Revolving Credit and
Reimbursement Agreement of even date herewith by and among NationsBank, N.A.
(the "Lender") and the Borrowers (the "WFI/TTI Credit and Reimbursement
Agreement"), and the other transactions contemplated under the WFI/TTI Credit
and Reimbursement Agreement.
This option is being delivered in accordance with the conditions set forth
in SECTION 6.1(a) of the WFI/TTI Credit and Reimbursement Agreement. All
capitalized terms not otherwise defined herein shall have the meanings
provided therefor in the WFI/TTI Credit and Reimbursement Agreement.
As such counsel, we have reviewed the following documents:
1. the WFI/TTI Credit and Reimbursement Agreement;
2. the Note;
3. the Facility Guaranty; and
NationsBank, N.A.
November 9, 1998
Page 2
4. The LC Account Agreement.
The documents described in items 1 through 4 immediately above are referred to
herein as the "Loan Documents".
For purposes of giving this opinion, we have examined such corporate
records of each of the Credit Parties, certificates of public officials,
certificates of appropriate officials of each of the Credit Parties, and such
other documents, and have made such inquiries of the Credit Parties, as we have
deemed appropriate.
Based upon and subject to the foregoing, and subject to the qualifications
set forth elsewhere herein, it is our opinion that:
1. The Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida and to our knowledge is
duly qualified to transact buisness as a foreign entity and is in good standing
in all jurisdictions in which the nature of its business requires such
qualification, and in which the failure to do so qualify could reasonably be
executed to have a Material Adverse Effect. The Guarantor has full corporate
power and authority to own its assets and conduct the businesses in which it is
now engaged and as expressly contemplated in the Loan Documents, and has full
corporate power and authority to enter into each of the Loan Documents to which
it is a party and to perform its obligations thereunder.
2. Each of the Loan Documents to which the Guarantor is a party has been
duly authorized by the Board of Directors of the Guarantor (and by any required
shareholder action), has been duly executed and delivered by the Guarantor,
and constitutes the legal, valid and binding obligation, agreement or
instrument, as the case may be, of the Guarantor, enforceable agains the
Guarantor in accordance with its respective terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization and
other similar laws relating to or affecting creditors' rights generally and by
the application of general equitable principles (whether considered in
proceedings at law or in equity).
3. Neither the execution or delivery of, nor performance by the Guarantor
of its obligations under, the Loan Documents (a) does or will conflict with,
violate or constitute a breach of (i) the charter or bylaws of the Guarantor,
(ii) any laws, rules or regulations applicable to the Guarantor, or (iii) any
contract, agreement, indenture, lease, instrument, judgment, writ,
determination, order, decree or arbitral award known to us to which the
Guarantor is a party or by which the Guarantor or any of its properties is
bound, (b) requires the prior consent of notice to, license from or filing with
any Governmental
NationsBank, N.A.
November 9, 1998
Page 3
Authority which has not been duly obtained or made on or prior to the date
hereof, or (c) to our knowledge, does or will result in the creation or
imposition of any lien, pledge, charge or encumbrance of any nature upon or with
respect to any of the properties of the Guarantor.
4. To our knowledge, there is no pending or threatened action, suit,
investigation or proceeding (including, without limitation, any action, suit
investigation, or proceeding under any environmental or labor law), nor is there
any basis therefor, before or by any court, or governmental department,
commission, board, bureau, instrumentality, agency or arbitral authority, (i)
which calls into question the validity or enforceability of any of the Loan
Documents, or the titles to their respective offices or authority of any
officers of the Guarantor or (ii) an adverse result in which would reasonable be
likely to have a Material Adverse Effect.
5. The Guarantor is not subject to any charter, bylaw, or other corporate
restrictions, nor, to the best of our knowledge, is the Guarantor a party to or
bound by any contract or agreement which restricts, limits, or prohibits
performance of any of its obligations pursuant to the terms of the Loan
Documents.
6. None of the transactions contemplated by the WFI/TTI Credit and
Reimbursement Agreement, including, without limitation, the use of the proceeds
of the Loans provided for in the Loan Documents, will violate or result in a
violation of Section 7 of the Securities Exchange Act of 1934, as amended, any
regulations issued pursuant thereto, or regulations G, T, U or X of the Board
of Governors of the Federal Reserve System.
The foregoing options are subject to the qualifications, limitations and
assumptions noted therein, as well as the following qualifications,
limitations and assumptions:
A. Our opinion concerning the validity, binding effect and
enforceability of the Loan Documents means that: (a) the Loan Documents
constitute effective contracts under applicable law, (b) the Loan Documents are
not invalid in their entirety because of a specific statutory prohibition or
public policy and are not subject in their entirety to a contractual defense,
and (c) subject to the last sentence of this paragraph, some remedy is
available if Guarantor is in material default under the Loan Documents. This
opinion does not mean that: (a) any particular remedy is available upon a
material default, or (b) every provision of the Loan Documents will be upheld or
enforced in any or each circumstance by a court. Furthermore, the validity,
binding effect and enforceability of the Loan Documents may be limited or
otherwise affected by: (a) bankruptcy, insolvency, reorganization, moratorium,
fradulent conveyance or other similar statutes, rules, regulations or other
laws affecting the enforcement of creditors' rights and remedies.
NationsBank, N.A.
November 9, 1998
Page 4
generally, and (b) the unavailability of, or limitation on the availability of,
a particular right or remedy (whether in a proceeding in equity or at law)
because of an equitable principle or a requirement to commercial reasonableness,
conscionability or good faith.
B. In rendering the opinions set forth herein, we have made the
following assumptions:
i. The legal capacity of each natural person.
ii. The legal existence of all persons other than the Borrowers
and the Guarantor.
iii. The power and authority of each person (other than the
Borrowers and the Guarantor) to execute, deliver, and perform each document
executed and delivered and to do each other act done or to be done by such
person for the authorization, execution and delivery by such person of each
document executed and delivered or to be executed and delivered by such person.
iv. The due execution and delivery of the Loan Documents by
each party hereto other than the Borrowers and the Guarantor, and the legality,
validity, binding effect and enforceability of the Loan Documents as to each
party other than the Borrowers and the Guarantor.
v. The genuineness of all signatures (other than those of the
Borrowers and the Guarantor), the completeness of each of the documents
submitted to us, the authenticity of each document submitted to us as an
original, the conformity of the original of each document submitted to us as a
copy and the authenticity of the original of each document reviewed by us as a
copy.
C. No opinion is given or expressed and none shall be inferred or
implied as to any matters other than as expressly set forth herein.
D. Whenever our opinion herein is qualified by the phrase "to our
knowledge" or "known to us" it is intended to indicate that during the course of
our representation of the Credit Parties, no information has come to our
attention which would give us actual knowledge that any matter is other than as
opined to herein. However, except to the extent expressly set forth herein, we
have not inspected the operations or properties of the Credit Parties, nor have
we undertaken any independent investigation to determine the existence or
absense of any such matters and no inference as to our knowledge of such
matters shall be drawn from the fact of our representation of the Credit
Parties.
NationsBank, N.A.
November 9, 1998
Page 5
E. We are members of the Florida Bar and do not hold ourselves out as
experts on, nor are we, in rendering our opinions herein, passing upon any
matter of, the laws of any jurisdiction other than the laws of the United
States, the internal laws of Florida, and the corporate law of Delaware, as now
existing.
Our opinions contained herein are rendered solely in connection with the
transactions contemplated under the Loan Documents and may not be relied upon in
any manner by any Person other than the addressees hereof, any successor or
assignee of any addressee (including successive assignees) and any Person who
shall acquire a participation interest in the interest of the Lender
(collectively, the "Reliance Parties"), or by any Reliance Party for any other
purpose. Our opinions herein shall not be quoted or otherwise included,
summarized or referred to any publication or document, in whole or in part, for
any purposes whatsoever, or furnished to any person other than a Reliance Party
(or a Person considering whether to become a Reliance Party), except as may be
required of any Reliance Party by applicable law or regulation or in accordance
with any auditing or oversight function or request of regulatory agencies to
which a Reliance Party is subject.
Very truly yours,
/s/ XXXXXX & XXXXX
XXXXXX & XXXXX LLP
EXHIBIT F
Compliance Certificate
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit Support
Telefacsimile: (000) 000-0000
Reference is hereby made to the Revolving Credit and Reimbursement
Agreement dated as of November 30, 1998 (the "Agreement") by and among World
Fuel International, S.A., Trans-Tec International, S.A., each a Costa Rican
corporation (collectively, the "Borrowers"), World Fuel Services, Inc., a
Florida corporation (the "Guarantor") and NationsBank, N.A., as Lender (the
"Lender"). Capitalized terms used but not otherwise defined herein shall have
the respective meanings therefor 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:
1. Calculations:
A. Consolidated Tangible Net Worth as of the
Determination Date was $__________.
Required: Not less than $__________.
[See Section 9.1(a) of the Agreement]
B. Consolidated Funded Indebtedness to Consolidated
Capitalization as of the Determination Date was _____ to 1.00
calculated as follows:
(i) Consolidated Funded Indebtedness as of the
Determination Date: $__________
(ii) Consolidated Capitalization as of the
Determination Date: $__________
(iii) (i) Divided by (ii): __________
Required: Less than .55 to 1.00.
[See Section 9.1(b) of the Agreement]
F-1
C. Consolidated Fixed Charge Coverage Ratio as of
the Determination Date was _____ to 1.00 calculated as follows:
(i) Consolidated EBITDA (for the Four Quarter
Period ending $__________ on (or most
recently ended prior to) the
Determination Date): $__________
(ii) capital expenditures (for the Four
Quarter Period ending on (or most
recently ended prior to) the
Determination Date): $__________
(iii) (i) MINUS (ii): $__________
(iv) Consolidated Fixed Charges (for the
Four Quarter Period ending on (or most
recently ended prior to) the
Determination Date): $__________
(v) (iii) divided by (iv): __________
Required: Equal or greater than 1.35 to 1.00.
[See Section 9.1(c) of the Agreement]
D. Applicable Margin is _______%
Applicable Unused Fee is _______%
2. No Default
A. Since __________ (the date of the last 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 following action with
respect to such Default or Event of Default:__________________
______________________________________________________________
___________.
(NOTE, if no Default or Event of Default has occurred,
insert "Not Applicable").
C. The Borrower and its Subsidiaries are current with
all trade payables, except trade payables contested in good
faith in the ordinary course of business.
F-2
D. As of the Determination Date, the Borrower and its
Subsidiaries are in full compliance with the established
sublimits and terms of the Letters of Credit issued pursuant
to the Agreement.
The Determination Date is the date of the last required financial
statements submitted to the Lender in accordance with SECTION 8.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 19___.
By:______________________________
Authorized Representative
Name:_____________________________
Title:____________________________
F-3
EXHIBIT G
FORM OF GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "Guaranty") is entered into as of this ___
day of _________, 199_, by and among the undersigned (individually a "Guarantor"
and collectively the "Guarantors") Subsidiaries of World Fuel International,
S.A. or Trans-Tec International, S.A., each a Costa Rican corporation, and
NATIONSBANK, N.A., as Lender (the "Lender"). Unless the context otherwise
requires, all terms used herein without definition shall have the respective
definitions provided therefor in the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, World Fuel International, S.A. and Trans-Tec International,
collectively the "Borrowers", World Fuel Services Corporation, as a guarantor,
and the Lender have entered into that certain Revolving Credit and Reimbursement
Agreement, dated as of November 30, 1998, whereby the Lender has made available
to the Borrowers a revolving credit facility pursuant to a Revolving Credit and
Reimbursement Agreement dated November 30, 1998 (as at any time hereafter
amended, restated, modified or supplemented, the "Credit Agreement"); and
WHEREAS, the Credit Agreement requires the execution of this Guaranty
by any Subsidiary of either Borrower acquired or created after the date thereof,
and
WHEREAS, the Guarantors will substantially benefit from the loans and
advances made or to be made by the Lender and the letters of credit issued or to
be issued by the Issuing Bank to the Borrower under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein
set forth, it is hereby agreed as follows:
1. Guarantors hereby absolutely and unconditionally guaranty, jointly
and severally, to the Lender, with full power to satisfy, discharge, release,
foreclose, assign and transfer the within Guaranty, the due performance and full
and prompt payment, whether at maturity or by acceleration or otherwise, of any
and all Borrowers' Liabilities (as hereinafter defined) (hereinafter
collectively referred to as the "Guarantors' Obligations"); PROVIDED, HOWEVER,
that the liability of any Guarantor hereunder 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.
2. For purposes of this Guaranty, "Borrowers' Liabilities" shall mean
and include any and all advances (including those made by the Lender to protect,
enlarge or preserve the priority, propriety, or amount of any lien in favor of
the Lender against mechanic's lien, equitable lien, or statutory claimants, or
otherwise), debts, obligations and liabilities of Borrowers pursuant to the
terms of the Credit Agreement, the Note, any Swap Agreement and all other Loan
Documents
G-1
executed in connection therewith heretofore, now, or hereafter made, incurred or
created, extended, renewed, replaced, refinanced or restructured, whether or not
from time to time decreased or extinguished and later increased, created or
incurred, whether voluntary or involuntary and, however arising, whether due or
not, absolute or contingent, liquidated or non-liquidated, determined or
undetermined, and whether the Borrowers may be liable individually or jointly
with others, or whether recovery upon such indebtedness may be or hereafter
become barred by any statute of limitations, or whether such indebtedness may be
or hereafter become otherwise unenforceable (collectively referred to
hereinafter as the "Borrowers' Liabilities"). This is a continuing Guaranty
relating to the Borrowers' Liabilities, and any other indebtedness arising under
subsequent or successive transactions which increase the Borrowers' Liabilities,
and said Guaranty shall be irrevocable and remain outstanding until all the
Borrowers' Liabilities are satisfied in full and the Lender shall have no
further obligation to make Loans and Advances and the Issuing Bank to issue
Letters of Credit under the Credit Agreement.
3. The obligations of the Guarantors hereunder are independent of the
obligations of the Borrowers, and a separate action or actions may be brought
and prosecuted against any Guarantor, whether such action is brought against the
Borrowers or whether the Borrower be joined in any such action or actions.
4. Each Guarantor authorizes the Lender, without notice or demand and
without affecting such Guarantor's liability hereunder, from time to time to (a)
renew, amend, compromise, extend, accelerate or otherwise change the time for
payment of, or otherwise change the terms of the Borrowers' Liabilities or any
part thereof, including increase or decrease of the rate of interest thereon;
(b) take and hold security for the payment of this Guaranty and the Guarantors'
Obligations and exchange, enforce, waive and release any such security; (c)
apply such security and direct the order or manner of sale thereof as the Lender
may determine; and (d) release or substitute any one or more endorsers or
guarantors of the Borrowers' Liabilities. The Lender may without notice assign
this Guaranty in whole or in part in connection with an assignment as permitted
under the Credit Agreement.
5. Each Guarantor waives any right to require the Lender to (a) proceed
against the Borrowers; (b) proceed against or exhaust any security held from the
Borrowers; or (c) pursue any other remedy in the Lender's power whatsoever. Each
Guarantor waives any defense arising by reason of any disability or other
defense of the Borrowers or by reason of the cessation from any cause whatsoever
of the liability of the Borrowers to the Lender. Until all the Borrowers'
Liabilities shall have been paid in full and the Lender shall have no further
obligation to make Loans and Advances and the Issuing Bank to issue Letters of
Credit under the Credit Agreement, each Guarantor waives any right to endorse
any remedy which the Lender now has or may hereafter have against the Borrowers,
and waives any benefit of, and any right to participate in, any security now or
hereafter held by the Lender as collateral security for the Borrowers'
Liabilities. Each Guarantor waives all presentments, demands for performance,
notices of non-performance, protests, notices of dishonor, notices of acceptance
of this Guaranty and of the existence, creation, or incurring of new or
additional indebtedness; any defense or circumstance which might otherwise
constitute a legal or equitable discharge of a guarantor or a surety; and all
rights under any state or federal statute dealing with or affecting the rights
of creditors. Each Guarantor covenants to cause the Borrowers to
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maintain and preserve the enforceability of any instruments now or hereafter
executed in favor of the Lender, and to take no action of any kind which might
be the basis for a claim that such Guarantor has any defense hereunder in
connection with the above-mentioned Loan Documents, other than payment in full
of the Borrowers' Liabilities. Each Guarantor waives any right or claim of right
to cause a marshaling of either Borrower's assets or to require the Lender to
proceed against the Guarantors or any other guarantor of the Borrowers'
Liabilities in any particular order. No delay on the part of the Lender in the
exercise of any right, power or privilege under the Loan Documents or under this
Guaranty shall operate as a waiver of any such privilege, power or right.
6. Until the Borrowers' Liabilities are paid in full and the Lender is
under no further obligation to make Loans and Advances and the Issuing Bank to
issue Letters of Credit under the Credit Agreement, any indebtedness of the
Borrowers now or hereafter held by any Guarantor is hereby subordinated to the
Borrowers' Liabilities; and such indebtedness of the Borrowers to any Guarantor,
if the Lender so requests, shall be collected, enforced and received by such
Guarantor as trustee for the Lender and be paid over to the Lender on account of
the Borrowers' Liabilities, but without reducing or affecting in any manner the
liability of such Guarantor under the other provisions of this Guaranty. Each
Guarantor, at the request of the Lender, shall execute such further documents in
favor of the Lender to further evidence and support the purpose of this Section
6. Each Guarantor hereby irrevocably waives and releases any right or rights of
subrogation or contribution existing at law, by contract or otherwise to recover
all or a portion of any payment made hereunder from the Borrowers or any other
guarantor.
7. Upon the default of the Borrowers with respect to any of their
obligations or liabilities to the Lender in connection with the Loan Documents,
or in case either Borrower or any Guarantor shall become insolvent or make an
assignment for the benefit of creditors, or if a petition in bankruptcy or for
corporate reorganization or for an arrangement be filed by or against Borrower
or any Guarantor (and if such petition is filed against either Borrower or any
Guarantor and is not stayed or dismissed within sixty (60) days), or in the
event of the appointment of a receiver for either Borrower or any Guarantor of
their properties, or in the event a judgment is obtained or warrant of
attachment is issued against either Borrower or any Guarantor (which judgment or
warrant is not satisfied or bonded or removed within sixty (60) days), all or
any part of the Guarantors' Obligations shall, without notice or demand, at the
option of the Lender, become immediately due and payable and shall be paid
forthwith, jointly and severally, by Guarantors without any offset of any kind
whatsoever, without the Lender first being required to make demand upon the
Borrowers or pursue any of its rights against Borrower, or against any other
person, including other guarantors (whether or not party to this Guaranty).
8. Notwithstanding any provision herein or in any instrument now or
hereafter executed in connection with this Guaranty or the Guarantors'
Obligations hereunder, the total liability for payments in the nature of
interest shall not exceed the limits now imposed by the usury laws of the State
of Florida governing the provisions of this Guaranty or in any instrument now or
hereafter executed in connection with this Guaranty or the Guarantors'
Obligations hereunder.
9. Each Guarantor acknowledges that the Lender has been induced by this
Guaranty to make and to continue to make Loans and Advances to the Borrowers and
the Issuing Bank to issue
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and continue to issue Letters of Credit on behalf of the Borrowers under the
Credit Agreement, and this Guaranty shall, without further reference or
assignment, pass to, and may be relied upon and enforced by, any successor or
participant or assignee of the Lender in and to any of Borrowers' Liabilities.
10. Each Guarantor hereby warrants and represents to the Lender, that:
(a) it is a duly organized and validly existing corporation under the laws of
the state of its incorporation; (b) it is qualified to do business in each state
in which qualification is necessary; (c) it has the power to execute this
Guaranty; (d) that the execution of this Guaranty has been duly authorized; and
(e) that this Guaranty is a binding and valid corporate obligation.
11. Each Guarantor acknowledges that the liabilities of said Guarantor
shall be independent of the Obligations of the Borrowers, and separate or joint
actions may be instituted by the Lender, against such Guarantors; and said
actions may be instituted against the Borrowers and any of the Guarantors, or
separately against any of the Guarantors. Any action taken by the Lender
pursuant to the provisions herein contained or contained in the Credit
Agreement, the Note or the Loan Documents, shall not release the party to this
Guaranty until all of the Borrowers' Liabilities are paid in full and the Lender
shall have no further obligation to make Loans and Advances and the Issuing Bank
to issue Letters of Credit under the Credit Agreement.
12. The Guarantors will upon demand pay to the Lender, jointly and
severally, the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, which
it may reasonably incur in connection with enforcement of this Guaranty or the
failure by any Guarantor to perform or observe any of the provisions hereof. The
Guarantors agree to indemnify and hold harmless the Lender from and against any
and all claims, demands, losses, judgments and liabilities (including
liabilities for penalties) of whatsoever kind or nature, growing out of or
resulting from this Guaranty or the exercise by the Lender of any right or
remedy granted to it hereunder or under the other Loan Documents, other than
such items arising out of the bad faith, gross negligence or willful misconduct
on the part of the Lender. If and to the extent that the obligations of the
Guarantors under this Section 12 are unenforceable for any reason, Guarantors
hereby agree to make the maximum contribution to the payment and satisfaction of
such obligations which is permissible under applicable law.
13. If claim is ever made upon the Lender for repayment or recovery of
any amount or amounts received in payment or on account of the Guarantors'
Obligations and the Lender repays all or part of said amount by reason of (a)
any judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property, or (b) any settlement or
compromise of any such claim effected by the Lender with any such claimant
(including the original obligor), then and in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding
upon it, notwithstanding any revocation hereof or the cancellation of any Notes
or other instrument evidencing any Guarantied Obligations or any security
therefor, and the Guarantors shall be and remain jointly and severally liable to
the Lender for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by the Lender.
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14. All notices required to be given hereunder shall be in writing, and
shall be given by certified mail, return receipt requested, and shall be deemed
given when they shall have been deposited in the United States Mail, with
sufficient postage prepaid thereon to carry them to their addressed destination,
addressed to the party for whom it is intended, as follows:
For a Guarantor: such Guarantor
c/o World Fuel Services Corporation
000 Xxxxx Xxxxx Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Attention: Chief Financial Officer
For Lender: NationsBank, N.A.
000 X. Xxxxx Xxxxxx
Independence Center, 15th Floor
Charlotte, North Carolina 28255
Attention: Corporate Credit Support
15. Whenever the text of this instrument so requires, the use of any
gender shall be deemed to include all genders, and the use of the singular shall
include the plural, and in such event, wherever the word "Guarantor" is used
herein, then such word shall be deemed to be "Guarantors" or either or any of
them.
16. This Guaranty shall be binding upon each Guarantor, successors,
legal representatives and assigns of each Guarantor.
17. This Guaranty shall, for all purposes, be governed by and construed
in accordance with the laws of the State of Florida.
18. THE LENDER AND EACH GUARANTOR KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN
CONNECTION WITH ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
[GUARANTOR]:
By: ___________________________________
Name:______________________________
Title:_____________________________
[GUARANTOR]:
By: ___________________________________
Name:______________________________
Title:_____________________________
SIGNATURE PAGE 1 OF 2
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LENDER:
NATIONSBANK, N.A.
By:_________________________________
Name:____________________________
Title:___________________________
SIGNATURE PAGE 2 OF 2
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SCHEDULE 1.1
Existing Letters of Credit
NONE.
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SCHEDULE 7.4
Subsidiaries and Investments in Other Persons
NONE.
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SCHEDULE 7.6
Indebtedness
NONE.
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SCHEDULE 7.7
Liens
NONE.
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SCHEDULE 7.8
Tax Matters
NONE.
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SCHEDULE 7.10
Litigation
NONE.
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SCHEDULE 7.18
Hazardous Materials
NONE.
S-6
