EXHIBIT 10-11
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of June 30, 2002
among
BANK OF AMERICA, N.A.
("Lender")
and
POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
and
THE PBSJ CORPORATION
(individually and collectively, "Borrower")
and
SEMINOLE DEVELOPMENT CORPORATION
POST, ▇▇▇▇▇▇▇ INTERNATIONAL, INC.
PBS&J CONSTRUCTION SERVICES, INC.
PBS&J CONSTRUCTORS, INC.
POST, ▇▇▇▇▇▇▇ INTERNATIONAL, INC., LTD. (SWAZILAND)
(collectively, "Guarantors")
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .................................. 1
Section 1.01 Certain Defined Terms ....................................... 1
Section 1.02 Accounting Terms ............................................ 4
ARTICLE II AMOUNTS AND TERMS OF ADVANCES ..................................... 4
Section 2.01 Revolving Line of Credit .................................... 4
Section 2.02 Computation of Interest ..................................... 8
Section 2.03 Payments .................................................... 8
Section 2.04 Fees ........................................................ 8
Section 2.05 Prepayment .................................................. 8
Section 2.06 Collateral .................................................. 9
ARTICLE III CONDITIONS OF LENDING ............................................. 9
Section 3.01 Condition Precedent to Lending .............................. 9
Section 3.02 Conditions Precedent to all Lending ......................... 10
ARTICLE IV REPRESENTATIONS AND WARRANTIES .................................... 10
Section 4.01 Representations and Warranties .............................. 10
ARTICLE V COVENANTS OF THE BORROWER AND GUARANTORS .......................... 12
Section 5.01 Affirmative Covenants Other Than Reporting Requirements ..... 12
Section 5.02 Reporting Requirements ...................................... 14
Section 5.03 Negative Covenants .......................................... 15
Section 5.04 Financial Covenants ......................................... 18
ARTICLE VI EVENTS OF DEFAULT ................................................. 18
Section 6.01 Events of Default ........................................... 18
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Section 6.02 Action if Event of Default ................................. 20
ARTICLE VII MISCELLANEOUS ..................................................... 20
Section 7.01 No Waiver; Cumulative Remedies ............................. 20
Section 7.02 Amendments ................................................. 21
Section 7.03 Notices .................................................... 21
Section 7.04 Costs, Expenses and Taxes .................................. 21
Section 7.05 Right of Setoff ............................................ 21
Section 7.06 Further Assurances ......................................... 22
Section 7.07 Execution in Counterparts .................................. 22
Section 7.08 Binding Effect; Assignment ................................. 22
Section 7.09 Governing Law .............................................. 22
Section 7.10 Severability ............................................... 22
Section 7.11 Headings ................................................... 22
Section 7.12 Arbitration; Waiver of Jury Trial .......................... 22
Section 7.13 No Oral Agreement .......................................... 23
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EXHIBITS
Exhibit A Form of Revolver Note (First Line)
Exhibit A-1 Form of Revolver Note (Second Line)
Exhibit B Form of Guarantee
Exhibit C Form of Corporate Resolutions - Guarantor
Exhibit D Form of Corporate Resolutions - Borrower
Exhibit E Form of Borrower's Counsel's Opinion
Exhibit F Form of Officer's Certificate - Incumbency and Signatures of Borrower
Exhibit G Form of Subordination Agreement
Exhibit H Form of "Bring Down" Certificate
SCHEDULES
Schedule I List of Subsidiaries
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AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT, dated as of June 30, 2002, by and among BANK OF AMERICA, N.A., a
national banking association (the "Lender"); POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
INC., a Florida corporation, and THE PBSJ CORPORATION, a Florida corporation
("PBSJ") (jointly and severally, individually and collectively, the "Borrower");
and SEMINOLE DEVELOPMENT CORPORATION, a Florida corporation ("Seminole"); POST,
▇▇▇▇▇▇▇ INTERNATIONAL, INC., a Florida corporation; PBS&J CONSTRUCTION SERVICES,
INC., a Florida corporation ("Construction Services"); PBS&J CONSTRUCTORS, INC.,
a Florida corporation; and POST, ▇▇▇▇▇▇▇ INTERNATIONAL, INC., LTD. (SWAZILAND),
a Swaziland corporation ("PB Swaziland") (jointly and severally, collectively,
the "Guarantors").
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Agreement" means this Amended and Restated Credit Agreement, and all
amendments thereto.
"Advance" means an extension of credit by the Lender to the Borrower
pursuant to Section 2.01(a) of this Agreement.
"Affiliate" means any Person which controls, or is controlled by, or is
under common control with a Borrower, a Subsidiary or any of the Guarantors.
"Borrowing" has the meaning assigned to it in Section 2.01(a) of this
Agreement.
"Business Day" means any day of the year on which commercial banks in the
City of Miami, Florida are open for the conduct of normal business.
"Collateral" shall have the meaning ascribed to such term in Section 2.06
of this Agreement.
"Default Rate" means a rate equal at all times to the Prime Rate (as
hereinafter defined) plus five percent (5%) per annum.
"EBITDA" means the Borrower's Net Income before deductions for interest
expense, income taxes, depreciation and amortization.
"EBITL" means the Borrower's Net Income before deductions for interest
expense, income taxes and lease expense.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended, and all related provisions of the Internal Revenue Code of 1954, as
amended, together with all applicable rulings and regulations issued under the
provisions of either of them.
"Effective Date" means the first day in any Interest Period (as such term
is defined in Section 2.01(c) of this Agreement).
"Events of Default" has the meaning assigned to that term in Section 7.01
of this Agreement.
"Financing Statements" shall have the meaning ascribed to such term in
Section 2.06 of this Agreement.
"Fixed Advance" means an Advance at an interest rate which is fixed during
an Interest Period.
"Fixed Charge Coverage" means EBITL, divided by interest expense plus lease
expense plus current maturities of long term debt plus current maturities of
capital leases excluding Advances under this Agreement.
"Fluctuating Advance" means an Advance at an interest rate which changes
with changes in the Prime Rate or in the LIBOR.
"Funded Debt" means all obligations for money borrowed, whether or not
evidenced by notes, bonds, debentures or other similar instruments, and all
obligations under conditional sale or other title retention agreements or
capitalized leases and all obligations issued or assumed as full or partial
payment for property, whether or not secured by a purchase money mortgage, but
shall not include accounts payable, accrued expenses and taxes payable.
"GAAP" means generally accepted accounting principles as applied in the
United States and in effect from time to time, consistently applied.
"Guarantee" means the irrevocable and unconditional guarantee in favor of
the Lender from the Guarantors.
"Guarantors" shall have the meaning assigned to said term in the
introduction to this Agreement and shall also include each Subsidiary of a
Borrower which is created after the date hereof.
"Indebtedness" means (without duplication) (i) all liabilities or other
obligations of such Person for borrowed money or for the unpaid portion of the
purchase price of property or services; (ii) all liabilities or other
obligations of any other Person for borrowed money or for the unpaid portion of
the purchase price of property or services the payment or collection of which
such corporation has guaranteed (except by reason of endorsement for collection
in the ordinary course of business) or in respect of which such corporation is
liable, contingently or otherwise, including, without limitation, liable by way
of agreement or purchase, to provide funds for payment, to supply funds to or
otherwise to invest in such other Person, or otherwise to assure a creditor
against loss; (iii) all liabilities or other obligations of any other Person for
borrowed money or for the unpaid portion of the purchase price of property or
services secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any mortgage, deed of
trust, pledge, lien, security interest or other charge or encumbrance upon or in
property (including, without limitation, accounts, as such term is defined under
the Florida Uniform Commercial Code), owned by such corporation, whether or not
such corporation has assumed or become liable for the payment of such
indebtedness or obligations; (iv) capitalized lease obligations of such
corporation; (v) unfunded vested benefits under each plan maintained for
employees of such Person and covered by Title IV of ERISA; and (vi) all
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liabilities or other obligations of such corporation, whether contingent or
absolute, matured or unmatured, arising under or in connection with the drafting
under any letter of credit.
"Investment" shall, when used with the reference to any investment of any
Person, mean any loan or advance made by it to any other Person, any guarantee
or other Indebtedness on the part of such Person in respect of any capital
stock, Indebtedness or other obligations or liabilities of any other Persons and
any other investment made by such Person in any other Person, including, without
limitation, any investment (however acquired) in stock or other ownership
interest in any other Person, and the outstanding amount of any Investment in
any other Person shall be considered to be the original amount thereof less
returns of principal or capital thereof (and without adjustment by reason of the
financial condition of such other Person).
"Lender's Office" means the address of the Lender set forth below its
signature.
"LIBOR" shall mean an interest rate per annum equal to the London Interbank
Offered Rates for thirty (30), ninety (90) or one hundred eighty (180) day
periods as published each business day in the money rate section of The Wall
Street Journal (or The New York Times in the event The Wall Street Journal no
longer exists or ceases to publish LIBOR rates) without adjustment by the
Lender.
"LIBOR Loan" shall have the meaning ascribed to such term in Section
2.01(c) of this Agreement.
"Loan Documents" mean each Note, this Agreement, the Guarantee, the
Security Agreement, the Financing Statements, and the Subordination Agreements.
"Maturity Date" means June 30, 2005.
"Maximum Rate" means a rate equal at all times to the highest lending rate
permitted under Florida or Federal law, whichever is higher or unlimited.
"Net Income" means after tax income determined in accordance with GAAP.
"Net Worth" means book net worth determined in accordance with GAAP.
"Note" means each Revolver Note to be delivered by the Borrower to the
Lender.
"Person" means an individual, corporation, limited liability company,
partnership, joint venture, trust, association or other business, regardless
whether organized or registered, and any government or any agency or political
subdivision thereof.
"Prime Rate" means the fluctuating rate of interest established by the
Lender from time to time, at its discretion, whether or not such rate shall be
otherwise published. The Prime Rate is established by the Lender as an index and
may or may not at any time be the best or lowest rate charged by the Lender on
any loan.
"Revolver Note" shall have the meaning ascribed to such term in Section
2.01(b) of this Agreement.
"Secured Obligations" shall have the meaning ascribed to such term in
Section 2.06 of this Agreement.
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"Security Agreement" shall have the meaning ascribed to such term in
Section 2.06 of this Agreement.
"Subordinated Debt" shall mean all indebtedness of the Borrower or any
Guarantor to any (i) Affiliate; (ii) Subsidiary; (iii) Guarantor; (iv)
shareholder of the Borrower; (v) shareholder of any Person referenced in clause
(i), (ii) or (iii) hereof; provided, however, Subordinated Debt shall not
include indebtedness incurred by the Borrower solely in connection with the
repurchase of PBSJ capital stock from employees or former employees of the
Borrower; provided further, however, Subordinated Debt shall not include
indebtedness incurred by the Borrower in connection with lease payments made by
the Borrower to Seminole in the ordinary course of business and not to exceed
fair market rental value for the lease by the Borrower of office and warehouse
facilities owned by Seminole; or (vi) third party to the extent such
indebtedness is permitted under Section 5.03(a)(viii) of this Agreement.
"Subordination Agreements" mean agreements for the subordination of
indebtedness of the Borrower or any Subsidiary to the prior payment of the
Indebtedness an terms approved in writing by the Lender prior to the date hereof
or to the operation thereof and for the subordination of indebtedness which is
permitted under Sections 5.03(a)(iii) through (ix) of this Agreement.
"Subsidiary" means any other corporation more than 50% of the outstanding
shares of capital stock of which having ordinary voting power for the election
of directors is owned directly or indirectly by a Borrower or any of the
Guarantors.
"Telegram" means any message transmitted by radio, teletype, cable, any
mechanical method of transmission or the like.
"Termination Date" has the meaning assigned to that term in Section 2.01(a)
of this Agreement.
Section 1.02 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the consolidated financial statements referred to
in Section 5.02(a) and all consolidated financial data submitted pursuant to
this Agreement shall be prepared in accordance with such principles.
ARTICLE II
AMOUNTS AND TERMS OF ADVANCES
The Lender agrees, on the terms and conditions hereinafter set forth, to
make the following loans to the Borrower:
Section 2.01 Revolving Line of Credit.
(a) Amount.
(i) The Lender agrees to make advances ("Advances") to the
Borrower from time to time during the period from the date hereof
to and including the Maturity Date or the earlier date of
termination under Section 6.02 (such earlier date being the
"Termination
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Date") in an aggregate amount not to exceed at any time and from time
to time outstanding the principal amount of Thirty Seven Million
Dollars (U.S. $37,000,000.00) (the "First Line"). Within the limits of
the First Line, the Borrower may borrow (a "Borrowing"), repay, and
reborrow under this Section 2.01; provided, no Event of Default has
occurred and is continuing and the outstanding balance under the First
Line never exceeds $37,000,000.00.
(ii) The Lender agrees to make Advances to the Borrower from
time to time during the period from the date hereof to and including
the earlier of the Maturity Date or the Termination Date in an
aggregate amount not to exceed at any time and from time to time
outstanding the principal sum of Three Million Dollars ($3,000,000.00)
("Second Line"). Within the limits of the Second Line, the Borrower
may borrow, repay and reborrow under this Section 2.01; provided no
Event of Default has occurred and is continuing and the outstanding
balance under the Second Line never exceeds $3,000,000.00. Insofar as
the Borrower may from time to time request and the Lender may be
willing, in its discretion, the Lender shall, subject to the terms and
conditions hereof, issue documentary and/or standby letters of credit
(the "L/Cs") for the account of the Borrower. The issuance of an L/C
shall be regarded as, and subject to the conditions applicable to, an
Advance, and the face amount of each then issued and outstanding L/C
as well as the amount of each then unreimbursed draft presented for
payment against an L/C shall each be treated as an outstanding
Advance, and shall be reserved under the Line and shall not be
available for advances thereunder. Prior to each and every request for
the issuance of an L/C, the Borrower shall execute and deliver to the
Lender any and all agreements and documents which the Lender may
require, including, without limitation, the Lender's standard form of
application for letter of credit. The maximum amount of all open L/Cs
and unreimbursed drafts which have been presented for payment against
the L/Cs shall not, at any one time, exceed the aggregate amount of
Three Million Dollars ($3,000,000.00). Each draft or other demand for
payment paid by Lender under an L/C shall be repaid in accordance with
the terms of the Second Line.
(iii) In the event for any reason the Advances outstanding at any
time exceed the aggregate amount permitted in this Section 2.01, the
Borrower shall pay cash to the Lender in such amount as is necessary
to reduce the outstanding principal balance of the Advances to the
aggregate amount permitted hereunder.
(b) The Revolver Note. All Advances made by the Lender under the
First Line and the Second Line, respectively, shall be evidenced by two (2)
promissory notes in substantially the forms attached hereto as Exhibit A and
Exhibit A-1 (individually, "Revolver Note" and collectively, "Revolver Notes")
(c) Interest.
(i) First Line. The Borrower agrees to pay interest on that
portion of the outstanding principal amount of the Revolver Note
evidencing the First Line from time to time as follows: (A) in the
case of a Fluctuating Advance, at a rate equal at all times, at
Borrower's option, to (I) the Lender's Prime Rate minus the Applicable
Margin (hereinafter defined) ("Prime Rate Option"); or (II) the LIBOR
for 30 day periods, adjusted daily, plus the Applicable Margin ("LIBOR
Floating Option"), and (B) in the case of a Fixed Advance, at a rate
equal to the LIBOR plus the Applicable Margin ("LIBOR Fixed Option"),
which shall be quoted for a thirty (30), ninety (90) or one hundred
eighty (180) day term. The Applicable
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Margin (the "Applicable Margin") shall for each fiscal quarter be
determined by reference to the Funded Debt to EBITDA ratio as of the
end of the fiscal quarter immediately preceding the delivery of the
applicable Chief Financial Officer's certificate as follows:
Applicable Margin Per Annum
---------------------------
Ratio Prime Rate LIBOR Rate
----- ---------- ----------
*2.5:1.0 -1.25% +.50%
****2.5:1.0 and ***3.0:1.0 -1.00% + 75%
Adjustments, if any, in the Applicable Margin shall be made by the
Lender within three (3) Business Days after receipt by the Lender of
quarterly financial statements for the Borrower and the Guarantors and
the accompanying Chief Financial Officer's certificate setting forth
the Funded Debt to EBITDA ratio of the Borrower and the Guarantors as
of the most recent fiscal quarter end. Subject to applicability of the
Default Rate (as provided in this Agreement), in the event the
Borrower fails to deliver such financial statements and certificate
within the time required by Section 5.02 hereof, the Applicable Margin
shall be the highest Applicable Margin set forth above until the
delivery of such financial statements and certificate. If Borrower
selects the LIBOR Fixed Option, it shall simultaneously advise the
Lender whether such selection is for a thirty (30), ninety (90) or one
hundred eighty (180) day period (defined herein as the "Interest
Period"), and the applicable interest rate for the LIBOR Fixed Option
shall remain effective for the Interest Period. Not later than 10:00
a.m. two (2) Business Days prior to commencement of any Interest
Period as to which the LIBOR Fixed Option is intended to apply,
Borrower shall give telephone instructions to the Lender (confirmed in
writing) of its elected interest rate option for the next Interest
Period. The failure of the Borrower to give such instructions shall
conclusively be presumed to be an election by Borrower to select the
Prime Rate Option.
If Borrower has selected the Prime Rate Option, then Borrower may
elect, at any time, to change the interest rate option by telephone
notice (confirmed in writing) to the Lender no later than 10:00 a.m.
on the date the changed interest rate is to become effective. In the
event that the LIBOR is not determinable, then the Prime Rate Option
shall apply.
In the event Borrower has selected the LIBOR Fixed Option with
respect to any Interest Period, such selection shall be subject to the
following terms and provisions:
(x) If, at any time, the Lender shall have determined (which
determination shall be final and conclusive and binding on
the parties hereto), that, as a result of any change in any
applicable law or governmental (federal, state or local,
domestic or foreign) rule, regulation or order or any
interpretation thereof (including, without limitation, the
introduction of any new or revised law or governmental rule,
regulation or order) or its compliance with any directive or
request of any central bank or other governmental authority
(whether or not having the force of law), the cost to such
Lender of making, funding or maintaining the portion of the
Advances which then is subject to one or more LIBOR Fixed
Options (a "LIBOR Loan" or "LIBOR Loans") has increased from
its cost at the time of the
* Less than
*** Less than or equal to
**** Greater than or equal to
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commencement of the relevant Interest Period, then the
Lender shall promptly so notify Borrower and give Borrower
reasonably sufficient detail as to the reason for the
increased costs as well as an accounting as to the amount of
any claimed increase(s) in cost; and Borrower shall pay to
the Lender, an amount sufficient to reimburse such Lender
for such increased cost.
(y) In the event the Lender shall have determined (which
determination shall be binding and conclusive on the
Borrower) that, by reason of circumstances affecting the
relevant markets for the LIBOR Floating Option or the LIBOR
Fixed Option, adequate and reasonable means do not exist for
determining and/or calculating the rate applicable to the
LIBOR Floating Option or the LIBOR Fixed Option with respect
to (a) the continuation of the LIBOR Floating Option or the
LIBOR Fixed Option then in existence pursuant to a prior
request of Borrower, or (b) any request by Borrower to
change the Prime Rate Option then in existence to a LIBOR
Floating Option or the LIBOR Fixed Option, the Lender shall
promptly notify Borrower by telephone (confirmed in writing)
of such determination. Upon receipt of such notice, the
Prime Rate Option shall be in effect until the Lender
notifies Borrower that it may resume selection of the LIBOR
Fixed Option or a LIBOR Floating Option.
In any case where Borrower may select an interest rate option but
fails or neglects to do so, then the Prime Rate Option shall apply.
Any changes in the interest rate herein set forth which are due to
changes in the Prime Rate shall take effect on the date of the changes
in the Prime Rate.
Following the occurrence of a monetary Event of Default or an
Event of Default under Section 6.01 of this Agreement which has not
been cured to the satisfaction of the Lender and until such cure of an
Event of Default, unless otherwise waived by the Lender, the principal
balance outstanding shall bear interest at the Default Rate.
The last day in the Interest Period (when considered with respect
to the Effective Date) shall be a Business Day; if not, such last day
shall be changed to the immediately-preceding Business Day. Interest
accrued on the indebtedness evidenced by the Revolver Note evidencing
the First Line prior to maturity shall be payable monthly in arrears
on the first day of each month commencing August 1, 2002; provided,
however, all interest accrued on LIBOR Loans shall be due and payable
at the conclusion of the relevant Interest Period for each LIBOR Fixed
Option.
(ii) Second Line. The Borrower agrees to pay an annual issuance
fee on that portion of the outstanding principal amount of the
Revolver Note evidencing the Second Line from time to time at a rate
equal at all times to one percent (1%) per annum per L/C. Interest
accrued on the indebtedness evidenced by the Revolver Note evidencing
the Second Line prior to maturity shall be payable monthly in arrears
on the first day of each month commencing August 1, 2002.
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Following the occurrence of a monetary Event of Default or an
Event of Default under Section 6.01 of this Agreement which has not
been cured to the satisfaction of the Lender and until such cure of an
Event of Default, unless otherwise waived by the Lender, the principal
balance outstanding shall bear interest at the Default Rate.
(d) Making the Advance. Each Advance shall be made upon notice from
the Borrower to the Lender at the Lender's Office specifying the date and amount
of the Advance. Upon the fulfillment of the applicable conditions set forth in
Article III hereof, the Lender will make such funds available to the Borrower at
the Lender's Office.
(e) Repayment of Advances. All outstanding Advances evidenced by the
Revolver Note evidencing the First Line shall be repaid on the earlier of (i)
the date of demand if an Event of Default has occurred; or (ii) the Maturity
Date.
(f) Use of Line Proceeds. The First Line proceeds shall be used by
the Borrower for general corporate purposes and to finance working capital and
capital acquisitions. The Second Line proceeds shall be used to fund the
issuance of the L/Cs.
Section 2.02 Computation of Interest. All computations of interest
hereunder or under either Note shall be made by the Lender on the basis of an
assumed year of 360 days for the actual number of days elapsed not to exceed,
however, the Maximum Rate. Interest shall accrue on the date an Advance is made
by the Lender but not on the date that repayment is received by the Lender
provided that such funds for repayment are received by the Lender not later than
2:00 p.m. on any Business Day.
Should any interest or other charges paid by the Borrower, howsoever
characterized or computed, after taking into account any commitment fee or other
charges which may be deemed in the nature of interest, result in the computation
or earning of interest in excess of the Maximum Rate, then any and all of such
excess shall be and the same is hereby waived as interest by the Lender and
shall be automatically credited against, and in reduction of, the principal
amounts owing to the Lender in the inverse order of their maturities.
Section 2.03 Payments. All payments of principal and interest hereunder or
under either Note shall be made at the Lender's Office in immediately available
funds. Whenever any payment to be made hereunder or under the Note shall be
stated to be due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and such extension of time shall in
such case be included in the computation of payment of interest hereunder or
under the Note.
Section 2.04 Unused Line Fee. Borrower shall pay to the Lender quarterly an
unused line fee at a rate equal to one eighth of one percent (1/8%) per annum
calculated by the Lender upon the amount by which the First Line amounts exceed
the average daily principal balance outstanding thereunder during the
immediately preceding fiscal quarter (or part thereof) while this Agreement is
in effect and for so long thereafter as any Indebtedness is outstanding under
the First Line, which fee shall be payable on the first day of each fiscal
quarter in arrears.
Section 2.05 Prepayment. The Borrower shall be permitted to make
prepayments of principal on any Advance for which the Borrower has exercised a
Prime Rate Option. The Borrower shall not be permitted to make prepayments of
any principal amounts outstanding prior to the expiration of the applicable
Interest
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Period with respect to any Advance for which the Borrower has exercised a LIBOR
Floating Option or a LIBOR Fixed Option.
Section 2.06 Collateral. In order to secure the full and timely payment and
performance of all Indebtedness and obligations of the Borrower and the
Guarantors under and in connection with the First Line and the Second Line
(including the related guarantee agreements), as well as any and all renewals,
extensions and modifications thereof (collectively, the "Secured Obligations"),
the Borrower and the Guarantors agree that the Lender will be furnished with a
security agreement (the "Security Agreement") and UCC-1 financing statements
(the "Financing Statements") in favor of, and in form and substance acceptable
to, the Lender, granting to the Lender a security interest, subject to no other
liens or encumbrances except as may be set forth in the Security Agreement or
this Agreement, in the following, together with the proceeds and products
thereof: (i) all the Borrower's and Guarantors' presently existing and hereafter
created accounts or accounts receivable; (ii) all the Borrower's and Guarantors'
presently owned and hereafter acquired inventory; (iii) all the Borrower's and
Guarantors' presently owned and hereafter acquired equipment and vehicles; (iv)
all the Borrower's and Guarantors' presently owned and hereafter acquired
chattel paper, instruments, documents, payment intangibles, and general
intangibles (as said terms are defined in Chapter 679 of the Florida Statutes);
and (v) all such additional and related property as are set forth in the
Security Agreement. In addition, the Borrower and Guarantors each hereby grant
to the Lender a lien on, and a security interest in, the deposit balances,
deposit accounts, items, certificates of deposit and monies of the Borrower and
the Guarantors now or at any time hereafter in the possession of or on deposit
with the Lender to secure and as collateral for the payment and performance of
the Secured Obligations. The Lender may, as provided in this Agreement,
appropriate and set-off against and apply the same to such Indebtedness when and
as due and payable. All of the above-described collateral is hereinafter
referred to as the "Collateral."
ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Condition Precedent to Lending. The obligation of the Lender
to make its initial Advance is subject to the condition precedent that the
Lender shall have received for the account of the Lender, on or before the day
of the initial Advance, all of the following, each dated the day of the initial
Advance, in form and substance satisfactory to the Lender:
(a) Each Revolver Note and the Security Agreement, in each case
executed by the Borrowers;
(b) The Guarantees in substantially the form of Exhibit B attached
hereto and a certified copy of the resolutions of the Board of Directors of each
of the Guarantors evidencing approval of the Guarantees in substantially the
form of Exhibit C attached hereto;
(c) A certified copy of the resolutions of the Board of Directors of
the Borrower, in substantially the form attached hereto as Exhibit D, evidencing
approval of this Agreement and the other Loan Documents and other matters
contemplated hereby, and all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Agreement and
the Loan Documents including, but not limited to, a certificate of "good
standing" (or its equivalent), certified copies of the articles of incorporation
and true and correct copies of the bylaws;
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(d) A favorable opinion of counsel for Borrower, in substantially the
form attached hereto as Exhibit E, as to the due execution and delivery by the
Borrower of this Agreement and the other Loan Documents and as to such other
matters as the Lender may reasonably request;
(e) A signed copy of a certificate of an officer of the Borrower, in
substantially the form attached hereto as Exhibit F who shall certify the names
of the officers of the Borrower authorized to sign this Agreement and the other
Loan Documents and the other documents or certificates to be delivered pursuant
to this Agreement by the Borrower or any of its officers, together with the true
signatures of such officers (Lender may conclusively rely on such certificate
until it shall receive a further certificate of the Secretary or an Assistant
Secretary of the Borrower canceling or amending the prior certificate and
submitting the signatures of the officers named in such further certificate);
(f) A certified copy of the written approval and consent of the
holders, if any, of any obligations of the Borrower which must consent to this
Agreement and the Borrowings hereunder; and
(g) A Subordination Agreement, in substantially the form attached
hereto as Exhibit G, to be signed by each Affiliate that is a holder of debt of
the Borrower other than the Lender, if any, or unless waived by the Lender.
Section 3.02 Conditions Precedent to all Lending. The obligation of the
Lender to make an Advance on the occasion of each Borrowing (including the
initial Borrowing shall be subject to the further conditions precedent that on
the date of such Borrowing the following statements shall be a true and correct
and the Lender shall have received for the account of the Lender, as soon as
possible and in any event within thirty (30) days after the end of each quarter
of each fiscal year of the Borrower, a certificate, in substantially the form
attached hereto as Exhibit H, signed by the President, Vice President or by any
other duly authorized officer of the Borrower, solely in such corporate
capacity, stating that, based on an examination which in the opinion of the
signer is sufficient to enable him to make an informed statement, to the best of
his knowledge:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the date of each Borrowing as though made on
and as of such date except to the extent that such representations and
warranties specifically relate to an earlier date or are affected by
the transaction contemplated under this Agreement; and
(ii) No event has occurred and is continuing or would result from
such Borrowing, which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties. Each of the Borrowers and the
Guarantors represents and warrants to the Lender as follows:
(a) Organization. Each Borrower and each Guarantor is a corporation
duly incorporated, validly existing, and in "good standing" (or its equivalent)
under the laws of the jurisdiction indicated in the introduction to this
Agreement; is duly qualified as a foreign corporation in all jurisdictions in
which its present
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operations or properties require such qualification; and has all requisite power
and authority, corporate or otherwise, to conduct its business, to own its
properties, and to execute and deliver and to perform all of its obligations
under the Loan Documents.
(b) Due Authorization. The execution, delivery and performance by the
Borrower and the Guarantors of the Loan Documents have been authorized by all
necessary corporate action and do not and will not contravene any legal or
contractual restriction binding on the Borrower and the Guarantors or any of
their properties.
(c) Validity. This Agreement constitutes, and each of the other Loan
Documents (including the Guarantees) when executed and delivered hereunder will
constitute, the legal, valid and binding obligations of the Borrower and the
Guarantors, as the case may be, enforceable against the Borrower and the
Guarantors in accordance with their terms, subject only to bankruptcy,
insolvency, reorganization, moratorium or similar laws at the time in effect
affecting the enforceability of rights of creditors in general.
(d) Financial Information. The drafts of the consolidated balance
sheet of the Borrower, the Guarantors and their Affiliates as at March 31, 2002
and the consolidated statement of income and cash flow of the Borrower, the
Guarantors and their Affiliates for the six (6) months then ended, prepared by
Borrower copies of' which have been furnished to the Lender, fairly present the
financial position of the Borrower as at such date and the results of the
operations of the Borrower, the Guarantors and their Affiliates for the six (6)
month period ended on such date, all in accordance with GAAP applied
consistently throughout the periods involved, and since March 31, 2002 there has
been no material adverse change in such position.
(e) Litigation. There are no actions, arbitrations or governmental
investigations, inquiries or proceedings, including RICO claims, pending or, to
the knowledge of the Borrower or the Guarantors, threatened against the Borrower
or the Guarantors or their properties before any court or governmental
instrumentality, which, if determined adversely to the Borrower or the
Guarantors, would have a material adverse effect on the financial position,
properties, or operations of the Borrower and the Guarantors taken as a whole.
(f) Subsidiaries. Set forth on Schedule I hereto is a complete and
accurate list of the Subsidiaries of the Borrower, if any, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of each incorporation,
the number of shares of each class of capital stock authorized, and the number
outstanding on the date hereof, and the percentage of the outstanding shares of
each such class owned (directly or indirectly) by the Borrower and the number of
shares covered by all outstanding options, warrants, rights of conversion or
purchase, and similar rights at the date hereof. All of the outstanding capital
stock of all Subsidiaries of Borrower, if any, have been validly issued, are
fully paid and nonassessable and are owned by the Borrower or one or more of the
Subsidiaries free and clear of all mortgages, deeds of trust, pledges, liens,
security interests and other charges or encumbrances. Each of the Subsidiaries
is duly incorporated, validly existing and in "good standing" (or its
equivalent) under the laws of the jurisdiction of its incorporation and each is
duly qualified as a foreign corporation in all jurisdictions in which its
present operations or properties require such qualification.
(g) Securities. After an Event of Default and, except after prior
written notice to the Lender, before an Event of Default, no proceeds of any
Advance will be used to acquire any security in any transaction which is subject
to Sections 13 and 14 of the Securities Exchange Act of 1934.
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(h) Regulation U. The Borrower is not engaged in the business of
obtaining credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any loan hereunder will be used to purchase
or carry any margin stock or to extend credit to any other Person for the
purpose of purchasing or carrying any margin stock.
(i) Taxes. Each of the Borrower and the Guarantors represents that (i)
it has filed all tax returns required by law; (ii) all filed tax returns
accurately reported its liabilities; (iii) all reported tax liabilities have
been paid (unless they are being contested in good faith and by appropriate
proceedings); and (iv) no Internal Revenue Service or Florida Department of
Revenue (or similar taxing authorities or agencies from other states)
examinations are pending or expected.
(j) Insolvency. Each of the Borrower and, on a consolidated basis, the
Guarantors: (i) is not and, following the execution and delivery of this
Agreement and the Guarantees, will not be "insolvent" as such term is defined in
Section 101 of the Bankruptcy Reform Act of 1978, as amended (the "Act"); (ii)
does not have and, following the execution and delivery of this Agreement and
the Guarantees, will not be left with, an "unreasonably small capital" within
the meaning of Section 548 of the Act; and (iii) in entering into and carrying
out its obligations under this Agreement and the Guarantees, does not intend to
hinder, delay or defraud any Person to which it is or may become indebted, and
does not intend to incur, or does not believe that it would incur, debts beyond
its ability to pay as such debts mature within the meaning of said Section 548.
(k) Accuracy of Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower and the Guarantors
to the Lender for the purposes of or in connection with this Agreement or any
transactions contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of the Borrower and the Guarantors to the
Lender will be, true and accurate in every material respect on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information not misleading.
(l) Enforceability. Borrower is not aware of any matter which would
render unenforceable, in whole or in part, any of the Loan Documents.
(m) Laws. To the best of its knowledge, Borrower is in material
compliance with all applicable laws, rules, regulations and orders relating to
the conduct of its business, including those pertaining to hazardous waste and
materials and other environmental laws.
ARTICLE V
COVENANTS OF THE BORROWER AND GUARANTORS
Section 5.01 Affirmative Covenants Other Than Reporting Requirements. So
long as any Indebtedness evidenced by either Note shall remain unpaid, the
Borrower, each Guarantor and each Subsidiary of the Borrower or each Guarantor
will, unless the Lender shall otherwise consent in writing:
(a) Payment of Taxes and Other Charges. Pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a
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lien or charge upon any properties of the Borrower, provided that the Borrower
or such Guarantor or Subsidiary shall not be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
appropriate proceedings and for which adequate reserves have been established on
its books.
(b) Compliance with Laws. Comply in all material respects with all
applicable laws, rules, regulations and orders relating to the conduct of its
business.
(c) Maintenance of Insurance. Maintain insurance with responsible and
reputable insurance companies or associations, payable both to the Lender and
the Borrower as their interests may appear, and which contain a cancellation
clause providing not less than thirty (30) days prior written notice to Lender,
in such amounts and covering such risks, including, but not limited to,
comprehensive general and professional liability in an amount not less than Five
Million Dollars ($5,000,000.00), flood, hazard, fire and professional errors and
omissions insurance, as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Borrower, the Guarantors or their Subsidiaries, if any, operate; provided,
however, the Borrower shall maintain comprehensive general and professional
liability insurance for Construction Services in an amount not less than One
Million Dollars ($1,000,000).
(d) Preservation of Corporate Existence. Preserve and maintain its
corporate existence, rights, franchises and privileges and remain qualified, as
a foreign corporation, in each jurisdiction in which such qualification is
necessary or desirable in view of its business and operations or the ownership
of its properties.
(e) Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all of its business affairs and transactions in
accordance with GAAP consistently applied and permit the Lender (by any of its
officers, employees and/or agents) to inspect, audit and make extracts from all
of the Borrower's records, files and books of account, and to enter and inspect
the Borrower's offices during normal business hours upon reasonable notice to
Borrower. The Borrower shall deliver any document or instrument necessary to the
Lender to obtain records from any service bureau maintaining records for the
Borrower. All reasonable out-of-pocket costs, fees and expenses incurred by the
Lender (other than salaries paid to the Lender's employees) or for which the
Lender has become obligated, in connection with such inspection and/or
verification shall be payable by the Borrower to the Lender. The Lender agrees
to hold in confidence the Borrower's proprietary information obtained pursuant
to this Agreement and shall not disclose the same to any third party except (i)
as required by law or by judicial or administrative process or to appropriate
regulatory authorities or as such information is or becomes public knowledge
other than by virtue of the Lender's disclosure; and (ii) to the extent that the
Lender, in its sole discretion, needs to disclose such information to agents or
professionals it retains to recover the obligations arising hereunder from the
Borrower.
(f) Maintenance of Net Worth. Maintain, on a quarterly basis, a
minimum Net Worth, as of September 30, 2001, of $ 48,235,529, with an annual
increase in minimum Net Worth thereafter equal to fifty percent (50%) of
Borrower's Net Income for the fiscal year ended September 30, 2002 and for each
succeeding fiscal year end during and throughout the entire term of this
Agreement.
(g) Performance and Compliance with Other Agreements. Perform all the
obligations to be performed pursuant to the terms of each material indenture,
agreement, contract and other instrument by which it is bound, unless the same
shall be contested in good faith by appropriate proceedings by the Borrower or
where performance thereof is prevented through no fault of the Borrower.
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(h) Maintenance Free from Security Interests. Maintain the Borrower's
assets free and clear of all security interests and liens whatsoever (except the
security interests in favor of the Lender, if any, and as otherwise permitted or
contemplated under this Agreement).
(i) Fixed Charge Coverage Ratio. Maintain, on a quarterly basis,
beginning September 30, 2002, for the Borrower's previous four (4) quarters
taken as a whole, a Fixed Charge Coverage Ratio of not less than 1.3 to 1.0
during and throughout the entire term of this Agreement.
(j) Funded Debt Ratio. Maintain, on a quarterly basis, a ratio of
Funded Debt to EBITDA not greater than 3.0 to 1.0 computed on a four (4) quarter
rolling basis during and throughout the entire term of this Agreement.
(k) Deposit Account. At all times, maintain with Lender its primary
operating and depositary accounts, including cash management accounts.
Section 5.02 Reporting Requirements. So long as any indebtedness evidenced
by either Note shall remain unpaid, the Borrower, the Guarantors and their
Subsidiaries will, as the case may be, unless the Lender shall otherwise consent
in writing, furnish to the Lender:
(a) As soon as available and in any event within one hundred twenty
(120) days after the end of each fiscal year of the Borrower and the Guarantors,
the Borrower shall provide to Lender a consolidated audited financial statement
and consolidating unaudited financial statement, all such financial statements
to be prepared in conformity with GAAP. The audited financial statements shall
be prepared by PriceWaterhouse Coopers or other independent public accountants
of recognized standing selected by the Borrower but reasonably acceptable to the
Lender together with a certificate of such accounting firm stating that in the
course of the regular audit of the business of the Borrower said firm has
obtained no knowledge that an Event of Default or an event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default,
has occurred and is continuing or if, in the opinion of such firm, an Event of
Default or an event which, with notice or lapse of time or both, would
constitute an Event of Default has occurred and is continuing, a statement as to
the nature thereof.
(b) As soon as possible and in any event within forty-five (45) days
after the end of each quarter of each fiscal year of the Borrower and the
Guarantors, an unaudited consolidated financial statement as of the end of such
quarter attested to by the Chief Financial Officer of the Borrower and the
Guarantors with respect to the accuracy and completeness of the aforesaid
financial information and accompanied by a certificate of the Chief Financial
Officer stating that he has no knowledge that an Event of Default or an event
which, with notice or lapse of time or both, would constitute an Event of
Default has occurred and is continuing;
(c) As soon as possible and in any event within twenty (20) days after
the end of each month of each fiscal year of the Borrower, a detailed summary
and analysis of aging of accounts;
(d) As soon as possible and in any event within forty-five (45) days
after the end of each quarter of each fiscal year of the Borrower, a backlog
report as customarily prepared by the Borrower;
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(e) Promptly after the filing or receiving thereof, copies of all
reports and notices which the Borrower files, or after the occurrence of a
reportable event as defined or any other event or condition which might
constitute grounds for the termination of, or for the appointment of a trustee
to administer, any plan under ERISA with the Pension Benefit Guaranty
Corporation ("PBGC") or the U.S. Department of Labor ("Department") or which the
Borrower receives from the PBGC or Department;
(f) Immediately, but not later than three (3) days after discovery of
an Event of Default but, in any case, not later than seven (7) days after the
occurrence of each Event of Default or each event which, with the giving of
notice or lapse of time or both, would constitute an Event of Default,
continuing on the date of such statement, the statement of the chief financial
officer of the Borrower setting forth details of such Event of Default or event
which, with the giving of notice or lapse of time or both, would constitute an
Event of Default and the action which the Borrower proposes to take with respect
thereto;
(g) Promptly notify the Lender of the commencement of any material
claims (other than claims under a policy of insurance in amounts which, together
with any interest accrued thereon, do not exceed the face value of such policy),
actions, suits, proceedings or investigations of any kind pending or threatened
against the Borrower or any Subsidiary or any Affiliate before any court,
tribunal or administrative agency or board.
(h) Borrower shall promptly inform the Lender of (i) Borrower's
failure or inability to perform on contracts over $1,000,000.00 in the
aggregate; and (ii) material information of which the Borrower has confirmed
knowledge relating to the material adverse change in the financial condition of
any account debtor who owes at least $1,000,000.00 to the Borrower.
Section 5.03 Negative Covenants. So long as any Indebtedness evidenced by
the Note shall remain unpaid, the Borrower, the Guarantors and their
Subsidiaries will not, without the prior written consent of the Lender:
(a) Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except
(i) Indebtedness of the Borrower under the Loan Documents;
(ii) Indebtedness of the Borrower and the Guarantors
maturing not more than thirty (30) days from the date created and
incurred in the ordinary course of business (trade credits);
(iii) Indebtedness of the Borrower and the Guarantors
pertaining to purchase money security interests not to exceed One
Million Dollars ($1,000,000.00) in the aggregate at any time
outstanding;
(iv) Indebtedness of PBSJ in connection with the repurchase
of PBSJ capital stock from employees or former employees of Borrower
or its Subsidiaries;
(v) Subordinated Debt of the Borrower and the Guarantors,
as well as any Subsidiary thereof, not to exceed One Million Dollars
($1,000,000.00) in the aggregate outstanding at any time, which is
incurred pursuant to unsecured amortizing financing
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provided by sellers in connection with acquisitions made by the
Borrower and the Guarantors, or any Subsidiary thereof;
(vi) A first mortgage loan encumbering real property
located at ▇▇▇▇ ▇.▇. ▇▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ with an aggregate
outstanding principal balance not exceeding Five Million Dollars
($5,000,000) at any time;
(vii) Indebtedness of the Borrower and the Guarantors with
an aggregate outstanding principal balance not exceeding Twelve
Million Dollars ($12,000,000) at any time for financing an office
building in Orlando, Florida; and
(viii) Indebtedness of the Borrower and the Guarantors with
an aggregate outstanding principal balance not exceeding One Million
Dollars ($1,000,000) at any time.
(b) Liens and Encumbrances. Create, incur, assume or suffer to exist
any mortgage, deed of trust, pledge, lien, security interest, or other charge or
encumbrance (including the lien or retained security title of a conditional
vendor) of any nature or any other type of preferential arrangement, upon or
with respect to any of its properties, now owned or hereafter acquired, or
assign or otherwise convey, any right to receive income, except that the
foregoing restrictions shall not apply to:
(i) liens for taxes, assessments or governmental charges
or levies on property of the Borrower if the same shall not at the
time be delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings;
(ii) liens imposed by law, such as landlords', carriers',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business;
(iii) liens arising out of pledges or deposits under
workmen's compensation laws, unemployment insurance, repairmen's,
materialmen's and other like liens arising in the ordinary course of
business in respect of obligations which are not due or are being
contested in good faith;
(iv) liens or security interests existing on the date of
this Agreement that are referenced in Section 5.03(a) of this
Agreement, or that are leases of equipment and vehicles or purchase
money liens on equipment and vehicles;
(v) liens or security interests covering real or personal
property and in existence at the time of acquisition thereof by the
Borrower, the Guarantors or the Subsidiaries and purchase money
mortgages and purchase money security interests (including the lien or
retained security title of a conditional vendor) covering real or
personal property hereafter acquired by the Borrower, the Guarantors
or Subsidiaries provided (A) the obligations secured thereby do not
exceed 100% of the purchase price or fair market value of such
property, whichever is less, (B) the obligations secured thereby are
otherwise permitted hereunder or any other agreements of whatever
nature to which the Borrower, the Guarantors or the Subsidiaries is a
party and (C) no such lien, mortgage or security interest covers, or
is extended to cover, any other property owned by the Borrower, the
Guarantors or the Subsidiaries.
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(c) Assumptions and Guarantees of Indebtedness of Other Persons.
Assume, guarantee, indorse or otherwise, become directly or contingently liable
in connection with any obligation of any other Person (except by indorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business) except for guarantees (other than the Guarantee of
each Guarantor) permitted under this Agreement which shall not exceed, including
all other Indebtedness, $5,000,000.00 in the aggregate; provided, however, the
Borrower shall be permitted to indemnify its officers and directors in
accordance with the provisions set forth under its bylaws and/or articles of
incorporation.
(d) Sale or Other Disposal of Assets. Sell, lease, sell and leaseback,
assign, transfer or otherwise dispose of all or a substantial portion of its
assets, including accounts and shares of stock of whatever type except as
otherwise permitted under this Agreement.
(e) Dividends. Declare or pay any dividends on any of its capital
stock now or hereafter outstanding or return any capital or make any
distribution of assets to shareholders in excess of fifty percent (50%) of the
Borrower's Net Income for the immediately preceding fiscal year.
(f) Change in Nature of Business, Ownership, or Management. Make or
permit to be made, any material change in the nature of its business as carried
on at the date hereof or permit any change in the current ownership structure as
an employee-owned entity; provided, however, the Borrower shall be permitted to
engage in business activities other than those currently conducted by the
Borrower to the extent that the Borrower's aggregate gross revenue attributable
to all such other business activities on a consolidated basis represent less
than ten percent (10%) of the Borrower's consolidated gross revenue taken as a
whole.
(g) Consolidated Tax Return. Make any consolidated tax return with
respect to its income with any other corporation except any Subsidiary or
Subsidiaries.
(h) Subordinated Debt. Make any prepayments on and/or restructure any
Subordinated Debt after an Event of Default shall have occurred and is
continuing after the expiration of applicable grace periods, if any, unless
waived by the Lender.
(i) Merger. Merge into or consolidate with or into any corporation;
for the purposes of this subparagraph (i), the acquisition by the Borrower or
any Subsidiary by lease, purchase or otherwise, of all or substantially all of
the assets of any corporation shall be deemed a merger of said corporation with
the Borrower or such Subsidiary except that any Subsidiary may merge into or
consolidate with any other Subsidiary of the Borrower or merge into the Borrower
so long as the Borrower is the surviving corporation other than any Subsidiary
which has incurred secured Indebtedness in connection with seller or other
creditor financing as otherwise permitted under Section 5.03(a) of this
Agreement. Anything herein to the contrary notwithstanding, the Borrower or any
Subsidiary shall be permitted, without limitation except for subsection (f)
above and the limitations set forth in the preceding sentence of this Section
5.03(i), to acquire by merger, any Person, provided that the Borrower, or a
Subsidiary, is the surviving corporation.
(j) Subsidiary. Except as otherwise permitted under Sections 5.03(f),
(i) and (m), organize any other Subsidiary unless prior written consent is
obtained from the Lender, which consent shall not be unreasonably withheld or
delayed; provided, however, such Subsidiary shall guarantee the Loan and shall
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execute a Guarantee in the form attached hereto as Exhibit B unless such
requirement for a Guarantee shall be waived by the Lender.
(k) Shares of Stock. Authorize, issue, grant or sell any shares of its
capital stock except to employees.
(l) Loans. Make any loan or advance or extend credit to any Person
except to (i) Affiliates of Borrower (ii) employees of Borrower, in the ordinary
course of Borrower's business, not to exceed in the aggregate One Hundred
Thousand Dollars ($100,000.00); and (iii) employees of Borrower and its
Subsidiaries in connection with the purchase by such employees of PBSJ capital
stock.
(m) Acquisition. Acquire or invest in any Person (excluding
individuals) or the assets of any Person (excluding individuals) whereby such
acquisitions or investments would exceed the limitations on aggregate gross
revenues as set forth under subsection (f) above.
(n) Investments. Except as otherwise permitted under Sections 5.03(f)
and (m), make any investments of Borrower's or Guarantor's funds other than
investments existing on the date of this Agreement and disclosed to the Lender
and short term investments with a maturity of less than twelve (12) months and
which are specifically limited to (i) government securities issued by the United
States of America or agencies thereof; (ii) Certificates of Deposit issued by
banks insured by the Federal Deposit Insurance Corporation with a minimum
capitalization of Fifty Million Dollars (U.S. $50,000,000.00); (iii) commercial
paper and money market instruments rated "investment grade" by ▇▇▇▇▇'▇ Investor
Services, Inc. or Standard & Poor's Corp.; and (iv) mutual funds; provided
however, anything herein to the contrary notwithstanding, the Guarantors shall
be permitted to make capital investments of their funds in the Borrower;
provided, further, however, if any such investment by the Guarantors shall be
deemed to be indebtedness of the Borrower, then such indebtedness shall be
characterized and treated as Subordinated Debt as provided under this Agreement.
Section 5.04 Financial Covenants. Anything herein to the contrary
notwithstanding, the Borrower and the Lender agree that all financial covenants
referred to under this Agreement shall be measured on a consolidated basis which
includes (i) the Borrower; (ii) the Guarantors; and (iii) any Affiliates
(excluding directors and officers of Borrower, the Guarantors and Subsidiaries)
of either the Borrower or any of the Guarantors.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. The term, "Event of Default", shall mean
any of the following events that shall occur and be continuing after the
expiration of applicable cure periods, if any, or unless waived by Lender:
(a) The Borrower shall fail to pay when due any installment of
principal of or interest under either Note or under any of the other Loan
Documents and such default continues unremedied for ten (10) consecutive days
after written notice thereof shall have been given to the Borrower by the Lender
or the holder of the Note; or
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(b) Any material representation or warranty made by the Borrower or
the Guarantors herein or by the Borrower (or any of its officers) in any
certificate, agreement, instrument or written statement made or delivered
pursuant to or in connection with this Agreement, shall prove to have been
incorrect in any material respect on the date as of which the facts set forth
are stated or certified; or
(c) The Borrower or the Guarantors shall default in the due
performance and observance of any of its agreements contained in Sections
5.01(f), (i), (j) or Section 5.03; or
(d) The Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement or in the other Loan Documents
on its part to be performed or observed and any such failure remains unremedied
for thirty (30) days after written notice thereof shall have been given to the
Borrower by the Lender or the holder of either Note and the remedy period has
not been extended by the Lender or the holder of either Note; or
(e) The Borrower shall fail to pay any Indebtedness for borrowed money
or the unpaid portion of the purchase price of property (other than as evidenced
by either Note) owing by the Borrower or any interest or premium thereon in
excess of One Million Dollars ($1,000,000.00) in the aggregate, when due,
whether such obligation shall become due by scheduled maturity, by required
prepayment, by acceleration, by demand or otherwise; or the Borrower shall fail
to perform any material term, covenant or agreement on its part to be performed
under any agreement or instrument (other than this Agreement) evidencing or
securing or relating to any such obligation owing by the Borrower when required
to be performed if the effect of such failure is to accelerate, or to permit the
holder or holders of such obligation or the trustee or trustees under any such
agreement or instrument to accelerate, the maturity of such obligation, whether
or not such failure to perform shall be waived by the holder or holders of such
Indebtedness or such trustee or trustees; provided, however, nothing in this
subsection shall require the payment or performance of any obligation, as
aforesaid, provided the Borrower contests by appropriate legal proceedings
diligently conducted in good faith, without cost or expense, including
attorneys' fees, to the Lender, any such payment or performance; or
(f) The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Borrower in an involuntary case
under the federal bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
officer) of the Borrower or for any substantial part of the property of the
Borrower or requiring the winding-up or liquidation of its affairs and the
continuance of any such decree or order unstayed and in effect for a period of
thirty (30) consecutive days; or
(g) The commencement by the Borrower of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
consent by the Borrower to the appointment of and taking possession by a
custodian, receiver, trustee, liquidator, assignee, sequestrator (or other
similar official) of the Borrower or for any substantial part of the property of
the Borrower or the making by the Borrower of any assignment for the benefit of
creditors, or the failure of the Borrower to pay its debts as such debts become
due, as the same is construed under Section 303 of the Bankruptcy Code or the
taking of action by the Borrower in furtherance of any of the foregoing; or
(h) Any final judgments or orders in an aggregate amount in excess of
One Million Dollars ($1,000,000.00) shall be entered against the Borrower and
such judgments or orders shall continue unsatisfied
-19-
or the repayment thereof shall not be fully bonded within thirty (30) days after
their issuance or are not otherwise still being contested in good faith by
appropriate proceedings which stay the effect thereof; or
(i) Any monies, deposits or other property of the Borrower, in excess
of Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate, now or
hereafter on deposit with or in the possession or under the control of the
Lender shall be attached or become subject to distrained proceedings or any
order or process of any court and remains unremedied for thirty (30) days after
written notice shall have been given to the Borrower by the Lender; or
(j) The certificate of the certified public accountants required to be
delivered to the Lender pursuant to Section 5.02(a) shall contain any material
exception indicating a material adverse change in the financial condition,
properties, or operations of the Borrower which would impair the Borrower's
ability to repay the Loan; or
(k) The occurrence of any material adverse change in the financial
position of the Borrower and/or condition of the property of the Borrower which
would impair the Borrower's ability to repay the Loan.
(l) Any material change in the nature of the corporate existence of
Borrower which has a material adverse effect on the Borrower.
(m) Occurrence of an event of default by Borrower under any other
credit facility established by the Lender in favor of Borrower so that an event
of default under any credit facility shall cause all credit facilities to be in
default, unless the Lender waives such default or it is otherwise cured.
Section 6.02 Action if Event of Default. If any Event of Default shall
occur for any reason, whether voluntary or involuntary, and be continuing, the
Lender shall, by notice to the Borrower, declare the right of the Borrower to
request Advances to be terminated, whereupon the same shall forthwith terminate.
Further, the Lender may, upon notice to the Borrower, declare the entire unpaid
principal amount evidenced by the Notes, all interest accrued and unpaid thereon
and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Indebtedness evidenced by the Notes, all such accrued
interest, and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest, or further notice of any kind, all of
which are hereby expressly waived by the Borrower; provided, however, if an
Event of Default is an event described in Sections 6.01(f) or (g), above, the
right of the Borrower to request Advances shall automatically terminate and the
Indebtedness of the Borrower to the Lender shall forthwith, without notice to or
demand upon the Borrower, be due and payable.
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Waiver; Cumulative Remedies. No failure or delay on the
part of the Lender or any other holder of either Note in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
-20-
Section 7.02 Amendments. No amendment, modification, termination, or waiver
of any provision of this Agreement or of the other Loan Documents nor consent to
any departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
Section 7.03 Notices. All notices, requests, demands, directions and other
communications provided for hereunder shall be in writing (including telegraphic
communication) and if to any party, addressed or delivered to it at its address
set forth below its signature on the signature pages hereof, or at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section 7.03. All such
notices, requests, demands, directions, and other communications shall, when
mailed or telegraphed, be effective when deposited in the mails or delivered to
the telegraph company, respectively, addressed as aforesaid.
Section 7.04 Costs, Expenses and Taxes. The Borrower agrees to pay, on
request, all reasonable costs and expenses of the Lender in connection with the
preparation, execution and delivery, and the Lender's costs and expenses in
connection with this Agreement, the other Loan Documents, and the other
instruments and documents to be delivered hereunder, including the reasonable
fees and out-of-pocket expenses of counsel for the Lender with respect thereto,
and, after an Event of Default has occurred, all costs and expenses, if any, in
connection with the enforcement of this Agreement, the other Loan Documents, or
any other instruments and documents to be delivered hereunder. In addition, the
Borrower shall pay any and all excise (documentary stamp) and other taxes
(including interest and penalties for failure to have paid same) payable or
determined to be payable, whether prior to or simultaneously with the initial
Advance or at any time thereafter, in connection with the execution and delivery
of this Agreement, the other Loan Documents and the other instruments and
documents to be delivered hereunder, and agrees to save the Lender harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes. Anything herein to the contrary
notwithstanding, the Borrower shall not be obligated to pay to the Lender
amounts incurred by the Lender for attorneys' fees in connection with any
matters arising under this Agreement in which the Borrower is the prevailing
party.
Section 7.05 Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default, the Lender or any bank which participates
in any loan to the Borrower with the Lender in connection herewith is hereby
authorized at any time and from time to time, without notice to the Borrower
(any such notice being expressly waived by the Borrower), to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other Indebtedness at any time owing by the Lender or
participant to or for the credit or the account of the Borrower against any and
all Indebtedness of the Borrower now or hereafter existing under this Agreement
and the other Loan Documents or in connection with any participant, irrespective
of whether or not the Lender shall have made any demand under this Agreement or
the other Loan Documents and although such obligations may be unmatured. The
Borrower agrees that the Indebtedness of the Borrower to the Lender shall be
deemed to run to the Lender and its participant as if the Notes had initially
been executed and delivered by the Borrower to the order of the Lender and its
participant (s). The Lender agrees promptly to notify the Borrower after any
such setoff and application made by the Lender or the Lender's participant,
provided that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of the Lender under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) which the Lender may have.
-21-
Section 7.06 Further Assurances. The Borrower and the Guarantors agree to
execute any and all further documents and instruments that may be required under
applicable law or which the Lender may reasonably request in order to effectuate
the transactions contemplated by this Agreement.
Section 7.07 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
Section 7.08 Binding Effect; Assignment. This Agreement shall become
effective when it shall have been executed by the Borrower and the Lender and
thereafter shall be binding upon and inure to the benefit of the Borrower and
the Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lender which consent the Lender may
grant or withhold in its discretion.
Section 7.09 Governing Law. This Agreement and each of the other Loan
Documents shall be governed by, and construed in accordance with, the laws of
the State of Florida (except as to those matters relating to interest rates or
other lending terms which are or may, at the election of the Lender, be governed
by United States (federal) law).
Section 7.10 Severability Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 7.11 Headings. Article and Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 7.12 Arbitration; Waiver of Jury Trial.
(a) This section concerns the resolution of any controversies or
claims between the Borrower and the Lender, whether arising in contract, tort or
by statute, including but not limited to controversies or claims that arise out
of or relate to: (i) this Agreement (including any renewals, extensions or
modifications); or (ii) any document related to this Agreement (collectively, a
"Claim").
(b) At the request of the Borrower or the Lender, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration Act
(Title 9, U.S. Code) (the "Act"). The Act will apply even though this Agreement
provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the rules and procedures for the arbitration of financial services disputes
of J.A.M.S./Endispute or any successor thereof ("J.A.M.S."), and the terms of
this section. In the event of any inconsistency, the terms of this section shall
control.
(d) The arbitration shall be administered by J.A.M.S. and conducted in
Florida. All claims shall be determined by one arbitrator; however, if Claims
exceed $5,000,000, upon the request of any party, the
-22-
Claims shall be decided by three arbitrators. All arbitration hearings shall
commence within 90 days of the demand for arbitration and close within 90 days
of commencement and the award of the arbitrator(s) shall be issued within 30
days of the close of the hearing. However, the arbitrator(s), upon a showing of
good cause, may extend the commencement of the hearing for up to an additional
60 days. The arbitrator(s) shall provide a concise written statement of reasons
for the award. The arbitration award may be submitted to any court having
jurisdiction to be confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute of
limitations, the service on J.A.M.S. under applicable J.A.M.S. rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning
this arbitration provision or whether a Claim is arbitrable shall be determined
by the arbitrator(s). The arbitrator(s) shall have the power to award legal fees
pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of the Borrower or the
Lender to: (i) exercise self-help remedies, such as but not limited to, setoff;
(ii) initiate judicial or nonjudicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights, or
(iv) act in a court of law to obtain an interim remedy, such as but not limited
to, injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies.
(g) By agreeing to binding arbitration, the parties irrevocably and
voluntarily waive any right they may have to a trial by jury in respect of any
Claim. Furthermore, without intending in any way to limit this Agreement to
arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably
and voluntarily waive any right they may have to a trial by jury in respect of
such Claim. This provision is a material inducement for the parties entering
into this Agreement.
Section 7.13 NO ORAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
-23-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LENDER:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Vice President
Commercial Banking
BORROWER:
POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman/Chief Financial Officer
THE PBSJ CORPORATION, a Florida
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman/Chief Financial Officer
/Treasurer
-24-
GUARANTORS:
SEMINOLE DEVELOPMENT CORPORATION,
a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
POST, ▇▇▇▇▇▇▇ INTERNATIONAL, INC., a
Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President/Secretary/Treasurer
PBS&J CONSTRUCTION SERVICES, INC., a
Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary/Treasurer
PBS&J CONSTRUCTORS, INC., a Florida
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary/Treasurer
POST, ▇▇▇▇▇▇▇ INTERNATIONAL, INC., LTD.
(SWAZILAND), a Swaziland corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary/Treasurer
-25-
REVOLVER NOTE
$37,000,000.00
As of June 30, 2002
Charlotte, North Carolina
FOR VALUE RECEIVED, POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC., a Florida
corporation, and THE PBSJ CORPORATION, a Florida corporation (jointly and
severally, individually and collectively, the "Borrower"), HEREBY PROMISES TO
PAY to the order of BANK OF AMERICA, N.A. (the "Lender"), the principal sum of
THIRTY-SEVEN MILLION DOLLARS ($37,000,000.00) or, if less, the aggregate unpaid
principal amount of all advances made by the Lender to the Borrower pursuant to
the Amended and Restated Credit Agreement (as hereinafter defined) outstanding
on June 30, 2005; together with interest on any and all principal amounts
remaining unpaid hereunder from time to time outstanding from the date hereof
until the indebtedness evidenced hereby is paid in full, at such interest rates
and payable at such times as are specified in the Amended and Restated Credit
Agreement. Any amount of principal or interest evidenced hereby which is not
paid when due shall bear interest from the day when due until such amount is
paid in full, payable on demand at such interest rates and payable at such times
as are specified in the Amended and Restated Credit Agreement. Both principal
and interest are payable in lawful money of the United States of America at ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ 3 3131 in same day funds.
This Note is the "Revolver Note" for the "First Line" referred to in,
and is entitled to the benefits (including, without limitation, the described
collateral) of, the Amended and Restated Credit Agreement, dated as of June 30,
2002 (as further amended, restated or otherwise modified, the "Amended and
Restated Credit Agreement") among the Lender, the Borrower and the Guarantors
(as defined thereunder). The Amended and Restated Credit Agreement, among other
terms, provides for (i) the making of advances (the "Advances") by the Lender to
the Borrower from time to time pursuant to the Amended and Restated Credit
Agreement in an aggregate amount not to exceed $37,000,000, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Note, (ii)
for the acceleration of the indebtedness evidenced hereby upon the occurrence of
certain events, and (iii) for security for the full and timely payment and
performance of all indebtedness and obligations of the Borrower and the
Guarantors hereunder.
The Borrower waives presentment, notice, protest and all other notices
in connection with the delivery, acceptance, performance, default or enforcement
of the indebtedness evidenced by this Note; assents to any indulgence and to the
addition or release of any other party or person primarily or secondarily liable
for the indebtedness evidenced hereby; and agrees to pay all costs and expenses,
including, but not limited to, reasonable attorneys' fees and costs, incurred by
the Lender in connection with the collection of the indebtedness evidenced by
this Note or in the enforcement of the provisions hereof. This Note, even though
executed and delivered outside the State of Florida, shall, nonetheless, be
governed by the internal laws of the State of Florida (except as to interest
rates
-26-
or other terms of lending which are or may, at the election of the Lender, be
governed by the laws of the United States) in all respects, including matters of
construction, validity and performance.
To the extent permitted by law, a delinquency charge may be imposed in
an amount not to exceed four percent (4%) of any payment that is more than
fifteen days late.
This Note renews, amends, replaces and supersedes that certain
Revolver Note (the "Second Amendment Note") dated June 30, 1999, executed by
Borrower and made payable to the order of Lender in the original principal
amount of $22,000,000.00. It is the intention of the Borrower and Lender that
while this Note renews, amends, replaces and supersedes the Second Amendment
Note, it is not in payment or satisfaction of the Second Amendment Note, but
rather is the substitution of one evidence of debt for another without any
intent to extinguish the old. Should there be any conflict between any of the
terms of the Second Amendment Note and the terms of this Note, the terms of this
Note shall control.
THE BORROWER IN DELIVERING, AND THE LENDER IN ACCEPTING DELIVERY OF,
THIS NOTE, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE, THE AMENDED AND RESTATED CREDIT AGREEMENT
AND ANY DOCUMENT EXECUTED AND DELIVERED BY THE BORROWER TO THE LENDER IN
CONJUNCTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY OR ANY DIRECTOR,
OFFICER, EMPLOYEE, AGENT OR INDEPENDENT CONTRACTOR OF EITHER. THIS IS A MATERIAL
INDUCEMENT TO LENDER TO ENTER INTO THE AMENDED AND RESTATED CREDIT AGREEMENT
WITH THE BORROWER AND TO MAKE ADVANCES TO THE BORROWER.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
INC, a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman/CFO
-27-
THE PBSJ CORPORATION, a
Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman/CFO/Treasurer
STATE OF NORTH CAROLINA )
)SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 1st day of
July, 2002, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Chairman/CFO of POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, INC., a Florida corporation, on behalf of said corporation. He is
personally known to me or has produced a Florida driver's license as
identification. It is agreed and understood that the undersigned Notary Public
shall not be responsible for repayment under this Note nor any other obligation
arising in connection with this Note.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
My commission expires: 09-10-2006
----------
Commission No.: ___________________
STATE OF NORTH CAROLINA )
)SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 1st day of
July, 2002, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Chairman/CFO/Treasurer of THE PBSJ
CORPORATION, a Florida corporation, on behalf of said corporation. He is
personally known to me or has produced a Florida driver's license as
identification. It is agreed and understood that the undersigned Notary Public
shall not be responsible for repayment under this Note nor any other obligation
arising in connection with this Note.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
My commission expires: 09-10-2006
----------
Commission No.: ___________________
-28-
AFFIDAVIT OF BORROWER AS TO
OUT-OF-STATE EXECUTION AND DELIVERY OF
PROMISSORY NOTE AND AMENDED AND RESTATED CREDIT AGREEMENT
STATE OF NORTH CAROLINA )
)SS:
COUNTY OF MECKLENBURG )
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, after being duly sworn, depose and state that:
1. I am an officer of Post, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc., a Florida
corporation, and The PBSJ Corporation, a Florida corporation (collectively, the
"Borrower").
2. On July 1, 2002, the Borrower and Bank of America, N.A. (the "Bank")
entered into a loan transaction (the "Loan").
3. On July 1, 2002, I personally executed, in Charlotte, North Carolina, on
behalf of the Borrower, that certain (i) promissory note in favor of the Bank in
the principal amount of $37,000,000.00 (the "First Line Revolver Note"), and
(ii) Amended and Restated Credit Agreement among the Bank, the Borrower and
certain guarantors of the Loan (the "Amended and Restated Credit Agreement").
4. Upon the execution of the First Line Revolver Note and the Amended and
Restated Credit Agreement as aforesaid, I delivered the First Line Revolver Note
and the Amended and Restated Credit Agreement to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Bank, in Charlotte, North Carolina.
5. This Affidavit is made for the benefit of the Bank in connection with
the laws of the State of Florida relating to documentary stamp taxes.
FURTHER AFFIANT SAITH NOT.
Executed this 1st day of July, 2002.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
AFFIANT
I HEREBY CERTIFY that on this day, before me, in Charlotte, North Carolina,
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Chairman/CFO of Post, ▇▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, Inc. and as Chairman/CFO/Treasurer of The PBSJ Corporation, who,
after being duly sworn, gave the foregoing statement.
WITNESS my hand and official seal this 1st day of July, 2002.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
My commission expires: 09-10-2006
----------
Commission No.: ___________________
-29-
AFFIDAVIT OF BANK OFFICER AS TO
OUT-OF-STATE DELIVERY OF
PROMISSORY NOTE AND AMENDED AND RESTATED CREDIT AGREEMENT
STATE OF NORTH CAROLINA )
)SS:
COUNTY OF MECKLENBURG )
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, after being duly sworn, depose and state that:
1. I am a Senior Vice President of Bank of America, N.A. (the "Bank").
2. On July 1, 2002, the Bank, and Post ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. and
The PBSJ Corporation, both Florida corporations (collectively, the "Borrower"),
entered into a loan transaction (the "Loan").
3. On July 1, 2002, I personally witnessed ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, on behalf of
the Borrower, execute, in Charlotte, North Carolina, that certain (i) promissory
note in favor of the Bank in the principal amount of $37,000,000.00 (the "First
Line Revolver Note") , and (ii) Amended and Restated Credit Agreement among the
Bank, the Borrower and certain guarantors of the Loan (the "Amended and Restated
Credit Agreement").
4. Upon the execution of the First Line Revolver Note and the Amended and
Restated Credit Agreement on behalf of the Borrower, the First Line Revolver
Note and the Amended and Restated Credit Agreement were personally delivered by
the Borrower to me on behalf of the Bank in Charlotte, North Carolina.
5. This Affidavit is made for the benefit of Bank in connection with the
laws of the State of Florida relating to documentary stamp taxes.
FURTHER AFFIANT SAITH NOT.
Executed this 1st of July, 2002.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
AFFIANT
I HEREBY CERTIFY that on this day, before me, in Charlotte, North Carolina,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice Preseident of Bank of
America, N.A., who, after being duly sworn, gave the foregoing statement.
WITNESS my hand and official seal this 1st day of July, 2002.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
My commission expires: 09-10-2006
----------
Commission No.: ___________________
-30-
REVOLVER NOTE
$3,000,000.00 As of June 30, 2002
Charlotte, North Carolina
FOR VALUE RECEIVED, POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC., a Florida
corporation, and THE PBSJ CORPORATION, a Florida corporation (jointly and
severally, individually and collectively, the "Borrower"), HEREBY PROMISES TO
PAY to the order of BANK OF AMERICA, N.A. (the "Lender"), the principal sum of
THREE MILLION DOLLARS ($3,000,000.00) or, if less, the aggregate unpaid
principal amount of all advances made by the Lender to the Borrower pursuant to
the Amended and Restated Credit Agreement (as hereinafter defined) outstanding
on June 30, 2005; together with interest on any and all principal amounts
remaining unpaid hereunder from time to time outstanding from the date hereof
until the indebtedness evidenced hereby is paid in full, at such interest rates
and payable at such times as are specified in the Amended and Restated Credit
Agreement. Any amount of principal or interest evidenced hereby which is not
paid when due shall bear interest from the day when due until such amount is
paid in full, payable on demand at such interest rates and payable at such times
as are specified in the Amended and Restated Credit Agreement. Both principal
and interest are payable in lawful money of the United States of America at ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ 3 3131 in same day funds.
This Note is the "Revolver Note" for the "Second Line" referred to in,
and is entitled to the benefits (including, without limitation, the described
collateral) of, the Amended and Restated Credit Agreement, dated as of June 30,
2002 (as further amended, restated or otherwise modified, the "Amended and
Restated Credit Agreement") among the Lender, the Borrower and the Guarantors
(as defined thereunder). The Amended and Restated Credit Agreement, among other
terms, provides for (i) the making of advances (the "Advances") by the Lender to
the Borrower from time to time pursuant to the Amended and Restated Credit
Agreement in an aggregate amount not to exceed $3,000,000, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Note, (ii)
for the acceleration of the indebtedness evidenced hereby upon the occurrence of
certain events, and (iii) for security for the full and timely payment and
performance of all indebtedness and obligations of the Borrower and the
Guarantors hereunder.
The Borrower waives presentment, notice, protest and all other notices
in connection with the delivery, acceptance, performance, default or enforcement
of the indebtedness evidenced by this Note; assents to any indulgence and to the
addition or release of any other party or person primarily or secondarily liable
for the indebtedness evidenced hereby; and agrees to pay all costs and expenses,
including, but not limited to, reasonable attorneys' fees and costs, incurred by
the Lender in connection with the collection of the indebtedness evidenced by
this Note or in the enforcement of the provisions hereof. This Note, even though
executed and delivered outside the State of Florida, shall, nonetheless, be
governed by the internal laws of the State of Florida (except as to interest
rates or other terms of lending which are or may, at the election of the Lender,
be governed by the laws of the United States) in all respects, including matters
of construction, validity and performance.
-31-
To the extent permitted by law, a delinquency charge may be imposed in
an amount not to exceed four percent (4%) of any payment that is more than
fifteen days late.
THE BORROWER IN DELIVERING, AND THE LENDER IN ACCEPTING DELIVERY OF,
THIS NOTE, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE, THE AMENDED AND RESTATED CREDIT AGREEMENT
AND ANY DOCUMENT EXECUTED AND DELIVERED BY THE BORROWER TO THE LENDER IN
CONJUNCTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY OR ANY DIRECTOR,
OFFICER, EMPLOYEE, AGENT OR INDEPENDENT CONTRACTOR OF EITHER. THIS IS A MATERIAL
INDUCEMENT TO LENDER TO ENTER INTO THE AMENDED AND RESTATED CREDIT AGREEMENT
WITH THE BORROWER AND TO MAKE ADVANCES TO THE BORROWER.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
INC, a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman/CFO
THE PBSJ CORPORATION, a
Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman/CFO/Treasurer
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
)SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 1st day of
July, 2002, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Chairman/CFO of POST, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, INC., a Florida corporation, on behalf of said corporation. He is
personally known to me or has produced a Florida driver's license as
identification. It is agreed and understood that the undersigned Notary Public
shall not be responsible for repayment under this Note nor any other obligation
arising in connection with this Note.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
My commission expires: 09-10-2006
----------
Commission No.: ___________________
STATE OF NORTH CAROLINA )
)SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 1st day of
July, 2002, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Chairman/CFO/Treasurer of THE PBSJ
CORPORATION, a Florida corporation, on behalf of said corporation. He is
personally known to me or has produced a Florida driver's license as
identification. It is agreed and understood that the undersigned Notary Public
shall not be responsible for repayment under this Note nor any other obligation
arising in connection with this Note.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
My commission expires: 09-10-2006
----------
Commission No.: ___________________
-33-
AFFIDAVIT OF BORROWER AS TO
OUT-OF-STATE EXECUTION AND DELIVERY OF
PROMISSORY NOTE AND AMENDED AND RESTATED CREDIT AGREEMENT
STATE OF NORTH CAROLINA )
)SS:
COUNTY OF MECKLENBURG )
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, after being duly sworn, depose and state that:
1. I am an officer of Post, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc., a Florida
corporation, and The PBSJ Corporation, a Florida corporation (collectively, the
"Borrower").
2. On July 1, 2002, the Borrower and Bank of America, N.A. (the "Bank")
entered into a loan transaction (the "Loan").
3. On July 1, 2002, I personally executed, in Charlotte, North Carolina, on
behalf of the Borrower, that certain (i) promissory note in favor of the Bank in
the principal amount of $3,000,000.00 (the "Second Line Revolver Note"), and
(ii) Amended and Restated Credit Agreement among the Bank, the Borrower and
certain guarantors of the Loan (the "Amended and Restated Credit Agreement").
4. Upon the execution of the Second Line Revolver Note and the Amended and
Restated Credit Agreement as aforesaid, I delivered the Second Line Revolver
Note to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Bank, in Charlotte, North Carolina.
5. This Affidavit is made for the benefit of the Bank in connection with
the laws of the State of Florida relating to documentary stamp taxes.
FURTHER AFFIANT SAITH NOT.
Executed this 1st day of July, 2002.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
AFFIANT
I HEREBY CERTIFY that on this day, before me, in Charlotte, North Carolina,
personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Chairman/CFO of Post, ▇▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, Inc. and as Chairman/CFO/Treasurer of The PBSJ Corporation, who,
after being duly sworn, gave the foregoing statement.
WITNESS my hand and official seal this 1st day of July, 2002.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
My commission expires: 09-10-2006
----------
Commission No.:
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ OFFICER AS TO
OUT-OF-STATE DELIVERY OF
PROMISSORY NOTE AND AMENDED AND RESTATED CREDIT AGREEMENT
STATE OF NORTH CAROLINA )
)SS:
COUNTY OF MECKLENBURG )
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, after being duly sworn, depose and state that:
1. I am a Senior Vice President of Bank of America, N.A. (the "Bank").
2. On July 1, 2002, the Bank, and Post ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. and
The PBSJ Corporation, both Florida corporations (collectively, the "Borrower"),
entered into a loan transaction (the "Loan").
3. On July 1, 2002, I personally witnessed ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, on behalf of
the Borrower, execute, in Charlotte, North Carolina, that certain (i) promissory
note in favor of the Bank in the principal amount of $3,000,000.00 (the "Second
Line Revolver Note") , and (ii) Amended and Restated Credit Agreement among the
Bank, the Borrower and certain guarantors of the Loan (the "Amended and Restated
Credit Agreement").
4. Upon the execution of the Second Line Revolver Note and the Amended and
Restated Credit Agreement on behalf of the Borrower, the Second Line Revolver
Note and the Amended and Restated Credit Agreement were personally delivered by
the Borrower to me on behalf of the Bank in Charlotte, North Carolina.
5. This Affidavit is made for the benefit of Bank in connection with the
laws of the State of Florida relating to documentary stamp taxes.
FURTHER AFFIANT SAITH NOT.
Executed this 1st of July, 2002.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
AFFIANT
I HEREBY CERTIFY that on this day, before me, in Charlotte, North Carolina,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice Preseident of Bank of
America, N.A., who, after being duly sworn, gave the foregoing statement.
WITNESS my hand and official seal this 1st day of July, 2002.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Notary Public of the State of
North Carolina
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
My commission expires: 09-10-2006
----------
Commission No.:
-35-
