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CREDIT AGREEMENT
among
SUMMIT HOLDING SOUTHEAST, INC.,
as Borrower,
AND
THE SUBSIDIARIES OF SUMMIT HOLDING SOUTHEAST, INC.
(OTHER THAN INSURANCE SUBSIDIARIES),
as Guarantors,
AND
SUNTRUST BANK, TAMPA BAY,
as Lender
DATED AS OF DECEMBER 11, 1997
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TABLE OF CONTENTS
CONTENTS
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS ....................................... 1
1.1 Definitions ..................................................... 1
1.2 Computation of Time Periods and Other Definitional Provisions ... 16
1.3 Accounting Terms ................................................ 16
SECTION 2
CREDIT FACILITY ........................................................ 16
2.1 Revolving Loan .................................................. 16
2.2 Letter of Credit Subfacility .................................... 17
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOAN AND LETTERS OF CREDIT ............ 20
3.1 Interest; Conversions and Continuations; Minimum Amounts ........ 20
(a) Interest Rate ............................................... 20
(b) Default Rate of Interest .................................... 20
(c) Interest Payments ........................................... 20
3.2 Place and Manner of Payments .................................... 21
3.3 Mandatory Prepayments ........................................... 22
3.4 Fees ............................................................ 22
3.5 Payment in Full at Maturity ..................................... 23
3.6 Computations of Interest ........................................ 23
3.7 Capital Adequacy ................................................ 24
3.8 Inability to Determine Interest Rate ............................ 24
3.9 Illegality ...................................................... 25
3.10 Requirements of Law ............................................. 25
3.11 Taxes ........................................................... 26
3.12 Indemnity ....................................................... 27
SECTION 4
GUARANTY ............................................................... 28
4.1 Guaranty of Payment ............................................. 28
4.2 Obligations Unconditional ....................................... 28
4.3 Modifications ................................................... 29
4.4 Waiver of Rights ................................................ 29
4.5 Reinstatement ................................................... 29
4.6 Remedies ........................................................ 30
4.7 Limitation of Guaranty .......................................... 30
SECTION 5
CONDITIONS PRECEDENT ................................................... 30
5.1 Closing Conditions .............................................. 30
5.2 Conditions to All Extensions of Credit .......................... 33
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SECTION 6
REPRESENTATIONS AND WARRANTIES ......................................... 34
6.1 Financial Condition ............................................. 34
6.2 No Material Change .............................................. 34
6.3 Organization and Good Standing .................................. 34
6.4 Due Authorization ............................................... 35
6.5 No Conflicts .................................................... 35
6.6 Consents ........................................................ 35
6.7 Enforceable Obligations ......................................... 35
6.8 No Default ...................................................... 35
6.9 Ownership ....................................................... 35
6.10 Indebtedness .................................................... 35
6.11 Litigation ...................................................... 36
6.12 Taxes ........................................................... 36
6.13 Compliance with Law ............................................. 36
6.14 ERISA ........................................................... 36
6.15 Subsidiaries .................................................... 37
6.16 Use of Proceeds; Margin Stock ................................... 37
6.17 Government Regulation ........................................... 37
6.18 Environmental Matters ........................................... 38
6.19 Intellectual Property ........................................... 39
6.20 Solvency ........................................................ 39
6.21 Investments ..................................................... 39
6.22 Locations of Collateral; Chief Executive Offices ................ 39
6.23 Disclosure ...................................................... 40
6.24 Licenses, etc ................................................... 40
6.25 No Burdensome Restrictions ...................................... 40
6.26 Collateral Documents ............................................ 40
6.27 Discontinued Operations ......................................... 40
SECTION 7
AFFIRMATIVE COVENANTS .................................................. 40
7.1 Information Covenants ........................................... 40
7.2 Financial Covenants ............................................. 44
7.3 Books and Records ............................................... 45
7.4 Compliance with Law ............................................. 45
7.5 Payment of Taxes and Other Indebtedness ......................... 45
7.6 Insurance ....................................................... 45
7.7 Maintenance of Property ......................................... 46
7.8 Performance of Obligations ...................................... 46
7.9 Collateral ...................................................... 47
7.10 Use of Proceeds ................................................. 47
7.11 Audits/Inspections .............................................. 47
7.12 Additional Credit Parties ....................................... 47
7.13 Main Operating Bank Accounts .................................... 48
7.14 Significant Changes in Operations ............................... 48
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7.15 Activation of Discontinued Operations ........................... 48
SECTION 8
NEGATIVE COVENANTS ..................................................... 48
8.1 Indebtedness .................................................... 48
8.2 Liens ........................................................... 49
8.3 Nature of Business .............................................. 49
8.4 Consolidation and Merger ........................................ 49
8.5 Sale or Lease of Assets ......................................... 49
8.6 Sale Leasebacks ................................................. 50
8.7 Advances, Investments and Loan .................................. 50
8.8 Dividends ....................................................... 50
8.9 Transactions with Affiliates .................................... 50
8.10 Fiscal Year; Organizational Documents ........................... 50
8.11 Limitations ..................................................... 50
8.12 Cancellation of Indebtedness .................................... 51
SECTION 9
EVENTS OF DEFAULT ...................................................... 51
9.1 Events of Default ............................................... 51
9.2 Acceleration; Remedies .......................................... 54
9.3 Allocation of Payments After Event of Default ................... 54
SECTION 10
MISCELLANEOUS ........................................................... 55
10.1 Notices ......................................................... 55
10.2 Right of Set-Off ................................................ 55
10.3 Benefit of Agreement ............................................ 55
10.4 No Waiver; Remedies Cumulative .................................. 56
10.5 Payment of Expenses; Indemnification ............................ 56
10.6 Amendments, Waivers and Consents ................................ 57
10.7 Counterparts .................................................... 57
10.8 Headings ........................................................ 57
10.9 Survival of Indemnification and Representations and Warranties .. 57
10.10 Governing Law; Jurisdiction ..................................... 57
10.11 Waiver of Jury Trial ............................................ 58
10.12 Time ............................................................ 58
10.13 Severability .................................................... 58
10.14 Entirety ........................................................ 58
10.15 Binding Effect .................................................. 59
10.16 Confidentiality ................................................. 59
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EXHIBITS
Exhibit 2.1(c) Form of Notice of Borrowing
Exhibit 2.1(f) Form of Revolving Note
Exhibit 3.1(d) Form of Notice of Continuation
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 10.3 Form of Assignment Agreement
SCHEDULES
Schedule 6.10 Indebtedness
Schedule 6.11 Litigation
Schedule 6.15 Subsidiaries
Schedule 6.18 Environmental Matters
Schedule 6.19 Intellectual Property
Schedule 6.22(a) Locations of Collateral
Schedule 6.22(b) Chief Executive Offices
Schedule 7.6 Insurance
Schedule 8.2 Liens
Schedule 8.7 Investments
Schedule 10.1 Notices
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "CREDIT AGREEMENT"), is entered into as of
December 11, 1997, among SUMMIT HOLDING SOUTHEAST, INC., a Florida corporation
(the "BORROWER"), each of BORROWER'S SUBSIDIARIES (OTHER THAN INSURANCE
SUBSIDIARIES) (individually a "GUARANTOR", and collectively the "GUARANTORS"),
and SUNTRUST BANK, TAMPA BAY (the "LENDER").
RECITALS
WHEREAS, Borrower desires that Lender extend financing to enable Borrower
to refinance obligations owing under that certain Credit Agreement dated as of
May 28, 1997 by and among the Borrower, the financial institutions party thereto
as "Lenders" and First Union National Bank, formerly known as First Union
National Bank of North Carolina, as Agent (the "EXISTING FACILITY"), and to
provide funds for the working capital of the Borrower, to the extent permitted
by this Agreement, such financing to be comprised of an annually reducing
revolving line of credit loan facility (the "CREDIT FACILITY") established by
this Agreement; and
WHEREAS, the Lender has agreed to make the Credit Facility available to
the Borrower on the terms and conditions set forth herein and in the other
Credit Documents (as herein defined).
NOW, THEREFORE, in consideration of the promises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS. As used herein, the following terms shall have the
meanings herein specified unless the context otherwise requires. Defined terms
herein shall include in the singular number the plural and in the plural the
singular:
"ADDITIONAL CREDIT PARTY" means each Person that becomes a Guarantor
after the Closing Date, as provided in Section 7.12.
"ADJUSTED BASE RATE" means the Base Rate plus the Applicable Margin.
"ADJUSTED EURODOLLAR RATE" means the Eurodollar Rate plus the Applicable
Margin.
"ADJUSTED PRIME RATE" means the Prime Rate minus the Applicable Margin.
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"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling (including but not limited to all directors and
officers of such Person), controlled by or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 20% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"ANNUAL REDUCTION DATE" shall mean the last Business Day of each calendar
year commencing with 1998 and each year thereafter, prior to the Revolving Loan
Maturity Date.
"APPLICABLE MARGIN" means the appropriate applicable percentages
corresponding to the Outstanding Level in effect as of the most recent
Calculation Date as shown below:
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Applicable Applicable Applicable
Pricing Outstanding Margin for Margin for Margin for
Level Level Eurodollar Loan Base Rate Loan Prime Rate Loan
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I <=$30,000,000 and 2.25% 2.25% .75%
>$26,000,000
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II <=$26,000,000 and 2.00% 2.00% .75%
>$22,000,000
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III <=$22,000,000 and 1.75% 1.75% .75%
>$18,000,000
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IV <=$18,000,000 1.50% 1.50% .75%
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The Applicable Margin for the Loan, or any portion thereof, shall be determined
and adjusted on the last Business Day of each month and shall apply to the
following month (each a "CALCULATION DATE"); provided that the initial
Applicable Margin for the Loan shall be based on Pricing Level I (as shown
above) and shall remain at Pricing Level I until the first Calculation Date
subsequent to the Closing Date and, thereafter, the Pricing Level shall be
determined by the then current Outstanding Level. Each Applicable Margin shall
be effective from one Calculation Date until the next Calculation Date.
"ASSET DISPOSITION" means the disposition of any or all of the assets (or
the sale of the stock of a Subsidiary) of the Borrower or any of its
Subsidiaries whether by sale, lease, transfer or otherwise other than: (a)
sales, leases, transfers or other dispositions of assets from one Credit Party
to another; (b) sales of inventory or other assets in the ordinary course of
business; and (c) dispositions of obsolete equipment not used or useful in the
business of the selling Credit Party.
"BANKRUPTCY CODE" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"BASE RATE" means, for any day, the rate per annum, fluctuating daily,
equal to the Eurodollar Rate in effect for a Eurodollar Loan with a one (1)
month Interest Period.
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"BASE RATE LOAN" means any Loan, or portion thereof, bearing interest at
a rate determined by reference to the Base Rate.
"BORROWER" means Summit Holding Southeast, Inc., a Florida corporation,
together with any successors and permitted assigns.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized or required by law
or other governmental action to close in Tampa, Florida; provided that with
respect to a Eurodollar Loan, such day is also a day on which dealings between
banks are carried on in U.S. dollar deposits in the London interbank market.
"CALCULATION DATE" has the meaning set forth in the definition of
Applicable Margin.
"CAPITAL EXPENDITURES" means all expenditures of the Credit Parties and
their Subsidiaries which, in accordance with GAAP, would be classified as
capital expenditures, including, without limitation, Capital Leases.
"CAPITAL LEASE" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
accordance with GAAP, is or should be accounted for as a capital lease on the
financial statements of that Person.
"CASH EQUIVALENTS" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar denominated
time and demand deposits and certificates of deposit of (i) the Lender, (ii) any
domestic commercial bank having capital and surplus in excess of $500,000,000,
or (iii) any bank whose short-term commercial paper rating from S&P is at least
A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank being an "APPROVED BANK"), in each case with maturities
of not more than two hundred seventy (270) days from the date of acquisition,
(c) commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase agreements
with a bank or trust company (including the Lender) or securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued by
or fully guaranteed by the United States of America in which the Borrower shall
have a perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at least
100% of the amount of the repurchase obligations, and (e) investments,
classified in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as amended, which
are administered by financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to investments of the
character described in the foregoing subdivisions (a) through (d).
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"CHANGE OF CONTROL" means either of the following events: (a) any
"person" or "group" (within the meaning of Sections 13(d) or 14(d) of the
Exchange Act) has become, directly or indirectly, the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person
shall be deemed to have "beneficial ownership" of all shares that any such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), by way of merger, consideration or
otherwise, of 30% or more of the voting power of the Voting Stock of the
Borrower on a fully-diluted basis, after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of the
Borrower (whether or not such securities are then currently convertible or
exercisable).
"CLOSING DATE" means the date hereof.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations promulgated thereunder, as amended, modified, succeeded or replaced
from time to time.
"COLLATERAL" means all collateral referred to in and covered by the
Collateral Documents.
"COLLATERAL DOCUMENTS" means the Security Agreements, the Pledge
Agreements and such other documents executed and delivered in connection with
the attachment and perfection of the Lender's security interests in the assets
of the Credit Parties, including without limitation, UCC financing statements
and trademark filings.
"COMMITMENT" means the commitment of the Lender with respect to the
Revolving Committed Amount.
"COMMITMENT FEE" means the fee payable to the Lender pursuant to Section
3.4(b).
"CONSOLIDATED NET WORTH" means at any time, the net worth of the Borrower
and its Subsidiaries on a consolidated basis, as determined in accordance with
GAAP.
"CREDIT DOCUMENTS" means this Credit Agreement, the Note, any Joinder
Agreement, the Collateral Documents, the LOC Documents and all other related
agreements and documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto.
"CREDIT PARTIES" means the Borrower and the Guarantors, and "CREDIT
PARTY" means any one of them.
"CREDIT PARTY OBLIGATIONS" means, without duplication all of the
obligations of the Credit Parties to the Lender, whenever arising, under this
Credit Agreement, the Note, the Collateral Documents or any of the other Credit
Documents to which the Borrower or any other Credit Party is a party.
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"DEBT ISSUANCE" means the issuance of any Indebtedness for borrowed money
by a Credit Party or any of its Subsidiaries, other than Indebtedness permitted
by Section 8.1.
"DEBT SERVICE COVERAGE RATIO" shall mean the ratio determined pursuant to
the following formula:
Debt Service Coverage = EBITDA - Capital Expenditures
----------------------------------------
Interest Expense (on Borrower's
Consolidated GAAP Statements) +
$4,000,000 + any debt service associated
with Indebtedness of the Borrower or any
Subsidiary
"DEFAULT" means any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
"DISCONTINUED OPERATIONS" means Meritec Solutions, Inc., Carolina Med
Summit, Inc., Employers Safety Group Association, Inc. and Carolina Summit
Healthcare, Inc.
"DOLLARS" and "$" means dollars in lawful currency of the United States
of America.
"EBITDA" means, for any fiscal period of the Borrower, an amount equal to
(a) Net Income of such Person for such period plus (b) an amount which, in the
determination of Net Income for such fiscal period has been deducted for (i)
interest expense to such fiscal period, (ii) total Federal, State, foreign and
other income taxes for such period, and (iii) all depreciation and amortization
for such period, all as determined in accordance with GAAP.
"EFFECTIVE DATE" means the date on which the conditions set forth in
Section 5.1 shall have been fulfilled (or waived in the sole discretion of the
Lender) and on which the initial Loan shall have been made, and/or the initial
Letter of Credit shall have been issued.
"ELIGIBLE ASSIGNEE" means (a) the Lender or Affiliate or subsidiary of
the Lender and (b) any other commercial bank, financial institution,
institutional lender or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission, except any accredited investor which is in
direct competition with the Borrower or any of its Subsidiaries) with capital of
at least $1 billion and with an office in the United States.
"ENVIRONMENTAL CLAIM" means any investigation, written notice, violation,
written demand, written allegation, action, suit, injunction, judgment, order,
consent decree, penalty, fine, lien, proceeding, or written claim whether
administrative, judicial, or private in nature arising (a) pursuant to, or in
connection with, an actual or alleged violation of, any Environmental Law, (b)
in connection with any Hazardous Material, (c) from any assessment, abatement,
removal, remedial, corrective, or other response action in connection with an
Environmental Law or other order of a Governmental Authority or (d) from any
actual or
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alleged damage, injury, threat, or harm to health, safety, natural resources, or
the environment.
"ENVIRONMENTAL LAWS" means any current or future legal requirement of any
Governmental Authority pertaining to (a) the protection of the indoor or outdoor
environment, (b) the conservation, management, or use of natural resources and
wildlife, (c) the protection or use of surface water and groundwater or (d) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, release, threatened release, abatement, removal,
remediation or handling of, or exposure to, any hazardous or toxic substance or
material, or (e) pollution (including any release to land surface water and
groundwater) and includes, without limitation, the comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 ET SEQ., Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976
and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 ET SEQ., Federal
Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC
1251 ET SEQ., Clean Air Act of 1966, as amended, 42 USC 7401 ET SEQ., Toxic
Substances Control Act of 1976, 15 USC 2601 ET SEQ., Hazardous Materials
Transportation Act, 49 USC App. 1801 ET SEQ., Oil Pollution Act of 1990, 33 USC
2701 ET SEQ., Emergency Planning and Community Right-to-Know Act of 1986, 42 USC
11001 ET SEQ., National Environmental Policy Act of 1969, 42 USC 4321 ET SEQ.,
Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) ET SEQ., any
analogous implementing or successor law, and any amendment, rule, regulation,
order, or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA AFFILIATE" means an entity which is under common control with any
Borrower within the meaning of Section 4001(a)(14) of ERISA, or is a member of a
group which includes the Borrower and which is treated as a single employer
under Sections 414(b) or (c) of the Code. In addition, for purposes of this
Agreement that relates to Code Section 412, the term ERISA Affiliate shall mean
any entity aggregated with the Borrower under Code Sections 414(b), (c), (m) or
(o).
"EXECUTIVE OFFICER" means any chief executive officer, chief financial
officer, executive vice president or senior vice president.
"EURODOLLAR LOAN" means any Loan, or portion thereof, bearing interest at
a rate determined by reference to the Eurodollar Rate and not the Base Rate.
"EURODOLLAR RATE" means, for the Interest Period for each Eurodollar Loan
comprising part of the same borrowing (including conversions, extensions and
renewals), a per annum interest rate determined pursuant to the following
formula:
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Eurodollar Rate = London Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under Regulation D
of the Board of Governors of the Federal Reserve System (or any successor), as
such regulation may be amended from time to time or any successor regulation, as
the maximum reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable to the Lender
with respect to Eurocurrency Liabilities as that term is defined in Regulation
D, whether or not Lender has any Eurocurrency Liabilities subject to such
reserve requirement at that time. Eurodollar Loan shall be deemed to constitute
Eurocurrency Liabilities and as such shall be deemed subject to reserve
requirements without benefits of credits for proration, exceptions or offsets
that may be available from time to time to a Lender. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" means the occurrence of any of the events or
circumstances described in Section 9.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as amended, modified,
succeeded or replaced from time to time.
"EXTENSION OF CREDIT" means the making of a Loan or issuing of a Letter
of Credit by the Lender.
"FEDERAL FUNDS RATE" means for any day the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day and (b) if no such rate is so published on such next
preceding Business Day, the Federal Funds Rate for such day shall be the average
rate quoted to the Lender on such day on such transactions as determined by the
Lender.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to Section 1.3.
"GOVERNMENTAL AUTHORITY" means any Federal, state, local, provincial or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"GUARANTOR" means each of the Subsidiaries (other than Insurance
Subsidiaries and Discontinued Operations) of the Borrower and each Additional
Credit Party, now owned or
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hereinafter acquired, which has executed a Joinder Agreement, together with
their successors and assigns.
"GUARANTY OBLIGATIONS" means, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) guaranteeing any
Indebtedness of any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent, (a) to
purchase any such Indebtedness or other obligation or any property constituting
security therefor, (b) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or to maintain working capital,
solvency or other balance sheet condition of such other Person (including,
without limitation, maintenance agreements, comfort letters, take or pay
arrangements, put agreements or similar agreements or arrangements) for the
benefit of the holder of such Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness of the repayment thereof, or (d) to otherwise
assure or hold harmless the holder of such Indebtedness or obligation against
loss in respect thereof. The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to be an amount equal
to the outstanding amount of the Indebtedness in respect of which such Guaranty
Obligation is made.
"HAZARDOUS MATERIALS" means any substance, material or waste defined or
regulated in or under any Environmental Laws.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
purchased by such Person to the extent of the value of such property (other than
customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations, other
than intercompany items, of such Person issued or assumed as the deferred
purchase price of property or services purchased by such Person which would
appear as liabilities on a balance sheet of such Person (other than trade debt
incurred in the ordinary course of business), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (f) all Guaranty
Obligations of such Person, (g) the principal portion of all obligations of such
Person under (i) Capital Leases and (ii) any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product of such Person where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP, (h) all obligations of such Person in respect of interest
rate protection agreements, foreign currency exchange agreements, or other
interest or exchange rate or commodity price hedging agreements, (i) the maximum
amount of all performance and standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and, without
duplication,
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all drafts drawn thereunder (to the extent unreimbursed), (i) all preferred
stock issued by such Person and required by the terms thereof to be redeemed
upon the demand of the holder thereof, or for which mandatory sinking fund
payments are due, by a fixed date, and (j) the aggregate amount of uncollected
accounts receivable of such Person subject at such time to a sale of receivables
(or similar transaction) regardless of whether such transaction is effected
without recourse to such Person or in a manner that would not be reflected on
the balance sheet of such Person in accordance with GAAP. The Indebtedness of
any Person shall include the Indebtedness of any partnership or unincorporated
joint venture in which such Person is legally obligated with respect thereto.
"INSURANCE SUBSIDIARIES" shall mean Bridgefield Employers Insurance
Company; Bridgefield Casualty Insurance Company; U.S. Employers Insurance, Inc.;
and any other Subsidiary of the Borrower which is engaged in the insurance
business.
"INTEREST EXPENSE" means, for any period, with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, all net interest
expense, including the interest component under Capital Leases, as determined in
accordance with GAAP.
"INTEREST PAYMENT DATE" means (a) as to Base Rate Loans, the last day of
every month and the Revolving Loan Maturity Date, (b) as to Eurodollar Loans,
the last day of each applicable Interest Period and the Revolving Loan Maturity
Date, and (c) as to Prime Rate Loans, the last day of every month and the
Revolving Loan Maturity Date.
"INTEREST PERIOD" means, as to a Eurodollar Loan, or any portion thereof,
a period of one or three months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including continuations
and conversions thereof); provided, however, (a) if any Interest Period would
end on a day which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
immediately preceding Business Day), (b) no Interest Period shall extend beyond
the Revolving Loan Maturity Date, and (c) where an Interest Period begins on a
day for which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"INVESTMENT" in any Person means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or otherwise) of
shares of capital stock, bonds, notes, debentures, partnership, joint ventures
or other ownership interests or other securities of such other Person, or (b)
any deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment or other
assets in the ordinary course of business), or (c) any other capital
contribution to or investment in such Person, including, without limitation, any
Guaranty Obligation incurred for the benefit of such Person.
"JOINDER AGREEMENT" means a Joinder Agreement substantially in the form
of EXHIBIT 7.13.
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"LENDER" means SunTrust Bank, Tampa Bay, together with its successors and
permitted assigns.
"LETTER OF CREDIT" means a Letter of Credit issued for the account of a
Credit Party by the Lender pursuant to Section 2.2, as such Letter of Credit may
be amended, modified, extended, renewed or replaced.
"LETTER OF CREDIT FEES" has the meaning set forth in Section 3.4(b).
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind, including, without limitation, any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, and any lease in the nature thereof.
"LOAN" means the Revolving Loan (or a portion thereof).
"LOC DOCUMENTS" means, with respect to any Letter of Credit, such Letter
of Credit, any amendments thereto, any documents delivered by a Credit Party in
connection therewith, any application therefor, and any agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties hereto, or (b) any collateral security for such
obligations.
"LOC OBLIGATIONS" means, at any time, the sum of (a) the maximum amount
which is, or at any time thereafter may become, available to be drawn under
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referred to in such Letters of Credit plus (b) the aggregate amount
of all drawings under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed.
"LONDON INTERBANK OFFERED RATE" means, with respect to any Base Rate Loan
or Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
quoted in the Wall Street Journal on the day that is one (1) Business Day prior
to the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified in the Wall Street
Journal, the applicable rate shall be the arithmetic mean of all such rates.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
operations, financial condition or business of the Credit Parties and their
Subsidiaries taken as a whole, (b) the ability of a Credit Party to perform its
respective obligations under this Credit Agreement or any of the other Credit
Documents, or (c) the validity or enforceability of this Credit Agreement, any
of the other Credit Documents, or the rights and remedies of the Lender
hereunder or thereunder taken as a whole.
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"MOODY'S" means Xxxxx'x Investors Service, Inc., or any successor or
assign of the business of such company in the business of rating securities.
"MULTIEMPLOYER PLAN" means a Plan of a Credit Party or ERISA Affiliate
covered by Title IV of ERISA which is a multiemployer plan as defined in Section
3(37) or 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means a Plan covered by Title IV of ERISA, other
than a Multiemployer Plan, which any Credit Party or any ERISA Affiliate and at
least one employer other than a Credit Party or any ERISA Affiliate are
contributing sponsors.
"NET CASH PROCEEDS" means the gross cash proceeds (including cash
actually received (but only when received) by way of deferred payment pursuant
to a promissory note, receivable, or otherwise) received from an Asset
Disposition or a Debt Issuance net of (a) transaction costs payable to third
parties, (b) a good faith estimate of the taxes payable with respect to such
proceeds, including, without duplication, withholding taxes and any taxes
payable to a third party in connection with distribution of such proceeds from a
Subsidiary of the Borrower to the Borrower, and (c) any repayments by the
applicable Credit Party of Indebtedness (other than Indebtedness under any of
the Credit Documents) to the extent that such Indebtedness is secured by a Lien
on the property that is the subject of such Asset Disposition.
"NET INCOME" means, for any period, the net income for such period of the
Borrower and its Subsidiaries on a consolidated basis, as determined in
accordance with GAAP.
"NON-EXCLUDED TAXES" has the meaning set forth in Section 3.11.
"NOTE" means the Revolving Note.
"NOTICE OF BORROWING" means a request by the Borrower for a Revolving
Loan, in the form of EXHIBIT 2.1(b).
"NOTICE OF CONTINUATION/CONVERSION" means a request by the Borrower to
continue an existing Eurodollar Loan to a new Interest Period or to convert a
Eurodollar Loan to a Base Rate Loan or to a Prime Rate Loan; to convert a Base
Rate Loan or a Prime Rate Loan to a Eurodollar Loan; or to convert a Prime Rate
Loan to a Base Rate Loan or to a Eurodollar Loan, in the form of EXHIBIT 3.1(D).
"OPERATING LEASE" means, as to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee which, in accordance
with GAAP, is or should be accounted for as an operating lease.
"OUTSTANDING LEVEL" means the actual aggregate outstanding principal
balance of the Revolving Loan on the applicable Calculation Date.
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17
"PBGC" means the Profit Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA and any successor thereto.
"PERMITTED INDEBTEDNESS" means any indebtedness permitted pursuant to
Section 6.10 and Section 8.1 herein.
"PERMITTED INVESTMENTS" means Investments which are (a) cash or Cash
Equivalents, (b) accounts receivable created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms, (c) inventory, raw materials and general intangibles (to the extent
such general intangible is not a Capital Expenditure) acquired in the ordinary
course of business, (d) Investments by one Credit Party in another Credit Party,
(e) the Investments set forth on SCHEDULE 8.7, (f) Investments in Capital
Expenditures, (g) inventory acquired in the ordinary course of business, (h)
Investments in the form of Indebtedness permitted under Section 8.1 or any other
provisions of any Credit Document and (i) loans and advances to officers and
employees of Credit Parties for moving, entertainment, travel and other similar
expenses in the ordinary course of business consistent with past practices; and
(j) Investments resulting from transactions permitted under Section 8.4 hereof.
"PERMITTED LIENS" means (a) Liens securing Credit Party Obligations, (b)
Liens for taxes not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof),
(c) Liens in respect of property imposed by law arising in the ordinary course
of business such as materialmen's, mechanics', warehousemen's, carrier's,
landlords' and other nonconsensual statutory Liens which are not yet due and
payable or which are being contested in good faith by appropriate proceedings
for which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account hereof), (d) Pledges or deposits
made in the ordinary course of business to secure payment of worker's
compensation insurance, unemployment insurance, pensions or social security
programs, (e) Liens arising from good faith deposits in connection with or to
secure performance of tenders, bids, leases, government contracts, performance
and return of money bonds and other similar obligations incurred in the ordinary
course of business (other than obligations in respect of the payment of borrowed
money, (f) Liens arising from good faith deposits in connection with or to
secure performance of statutory obligations and surety and appeal bonds, (g)
easements, rights-of-way, restrictions (including zoning restrictions), matters
of plat, minor defects or irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use of the encumbered
property for its intended purposes, (h) judgment Liens that would constitute an
Event of Default, (i) Liens in connection with Indebtedness allowed under
Section 8.1, (j) Liens arising by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar rights as to
deposit accounts or other funds maintained with a creditor depository
institution, and (k) Liens existing on the date hereof and identified on
SCHEDULE 8.2, provided that no such Lien shall extend to any property other than
the property subject thereto on the Closing Date.
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"PERSON" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated), or any Governmental Authority.
"PLAN" means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA.
"PLEDGE AGREEMENTS" means any Pledge Agreement executed and delivered by
a Credit Party in favor of the Lender, to secure its obligations under the
Credit Documents, as amended, modified, extended, renewed or replaced from time
to time.
"PRIME RATE" means for any day, the rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100th of 1%) equal to the greater
of (a) the Federal Funds Rate in effect on any such day plus 1/2 of 1%, or (b)
the rate of interest established from time to time by SunTrust Banks of Florida,
Inc. at its principal office in Orlando, Florida (or such other principal office
of the Lender as communicated in writing to the Borrower) as its "prime rate" in
effect on such day. Any change in the interest rate resulting from a change in
the Prime Rate shall become affective as of 12:01 a.m. of the Business Day on
which each change in the Prime Rate is announced by the Lender. The Prime Rate
is a reference rate used by the Lender in determining interest rates on certain
loans and is not intended to be the lowest rate of interest charged on any
extension of credit to any debtor. The Lender may make commercial or other loans
at rates of interest at, above, or below the Lender's prime lending rate. If for
any reason the Lender shall have determined (which determination shall be
conclusive absent manifest error) that it is unable after due inquiry to
ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Lender to obtain sufficient quotations in accordance with the
terms hereof, the Base Rate shall be determined without regard to clause (a) of
the first sentence of this definition until the circumstances giving rise to
such inability no longer exist.
"PRIME RATE LOAN" means any Loan, or portion thereof, bearing interest at
a rate determined by reference to the Prime Rate.
"REAL PROPERTIES" means all real property currently owned by the Borrower
or any of its Subsidiaries or acquired by the Borrower or any of its
Subsidiaries in the future.
"REGULATION D, G, U OR X" means Regulation D, G, U or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"REPORTABLE EVENT" means a "reportable event" as defined in Section 4043
of ERISA with respect to which the notice requirements to the PBGC have not been
waived.
"REQUIREMENT OF LAW" means, as to any Person, the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and
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any law, treaty, rule or regulation or final, non-appealable determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or to which any of its material property is
subject.
"REVOLVING COMMITTED AMOUNT" means THIRTY MILLION DOLLARS ($30,000,000)
or such lesser amount as the Revolving Committed Amount may be reduced pursuant
to Section 2.1(b) or Section 2.1(e).
"REVOLVING LOAN" means the revolving loan, or any portion thereof, made
to the Borrower pursuant to Section 2.1.
"REVOLVING LOAN MATURITY DATE" means the last Business Day of December,
2003.
"REVOLVING NOTE" means the promissory note of the Borrower in favor of
the Lender evidencing the Revolving Loan provided pursuant to Section 2.1, as
such promissory notes may be amended from time to time and as evidenced in the
form of EXHIBIT 2.1(F).
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SECURITY AGREEMENTS" means any Security Agreement executed and delivered
by a Credit Party in favor of the Lender to secure its obligations under the
Credit Documents, as such may be amended, modified, extended, renewed, restated
or replaced from time to time.
"SENIOR DEBT" means, as of any date, the total Indebtedness of the
Borrower and its Subsidiaries other than that subordinated in right of payment
to the Borrower's Obligations hereunder.
"SENIOR DEBT TO CAPITAL RATIO" shall be the percentage determined
pursuant to the following formula:
Senior Debt to Capital Ratio = Senior Debt
------------------------------------
Senior Debt + Consolidated Net Worth
"SINGLE EMPLOYER PLAN" means any Plan of a Credit Party or ERISA
Affiliate which is covered by Title IV of ERISA, but which is not a
Multiemployer Plan.
"SOLVENT" means, with respect to any Person as of a particular date, that
on such date (a) such Person is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course
of business, (b) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (c) such Person is not
engaged
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20
in a business or a transaction, and is not about to engage in a business or a
transaction, for which such Person's assets would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (d) the fair value of
the assets of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, and (e)
the present fair saleable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"SUBSIDIARY" means, as to any Person, (a) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, joint venture or
other entity in which such person directly or indirectly through Subsidiaries
has more than a 50% interest at any time.
"TERMINATION EVENT" means (a) with respect to any Single Employer Plan,
the occurrence of a Reportable Event or the substantial cessation of operations
(within the meaning of Section 4062(e) of ERISA); (b) the withdrawal of any
Credit Party or any ERISA Affiliate from a Multiple Employer Plan during a plan
year in which it was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan, (c) the
distribution of a notice of intent to terminate or the actual termination of a
Single Employer Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the
institution of proceedings to terminate or the actual termination of a Single
Employer Plan by the PBGC under Section 4042 of ERISA; (e) any event or
condition which might reasonably constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Single Employer Plan; or (f) the complete or partial withdrawal of any Credit
Party or any ERISA Affiliate from a Multiemployer Plan.
"UNUSED REVOLVING COMMITMENT" means, for any period, the amount by which
(a) the then applicable aggregate Revolving Committed Amount exceeds (b) the
actual daily outstanding aggregate principal amount of the Revolving Loan, plus
the aggregate amount of the LOC Obligations outstanding.
"UNUSED REVOLVING LOAN COMMITMENT FEES" means the fees payable to the
Lender pursuant to Section 3.4(a).
"VOTING STOCK" of a corporation means all classes of the capital stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
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21
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS. For
purposes of computation of periods of time hereunder, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding." References in this Agreement to "Articles", "Schedules" or
"Exhibits" shall be to Articles, Sections, Schedules or Exhibits of or to this
Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS. Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lender hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All financial statements delivered to the Lender hereunder
shall be accompanied by a statement from the Borrower that GAAP has not changed
since the most recent financial statements delivered by the Borrower to the
Lender or if the GAAP has changed described such changes in detail and
explaining how such changes affect the financial statements. All calculations
made for the purposes of determining compliance with this Credit Agreement shall
(except as otherwise expressly provided herein) be made by application of GAAP
applied on a basis consistent with the most recent annual or quarterly financial
statements delivered pursuant to Section 7.1 (or, prior to the delivery of the
first financial statements pursuant to Section 7.1, consistent with the
financial statements described in Section 5.1(d)); provided, however, if (a) the
Borrower shall object to determining such compliance on such basis at the time
of delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Lender shall so object in writing
within sixty (60) days after delivery of such financial statements (or after the
Lender has been informed of the change in GAAP affecting such financial
statements, if later), then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the Borrower
to the Lender as to which no such objection shall have been made.
Notwithstanding any of the foregoing, all financial statements and financial
matters of or regarding any Insurance Subsidiary shall be prepared, construed or
made (as applicable) in accordance with the statutory accounting principles
prescribed or permitted by the State of Florida Department of Insurance.
SECTION 2
CREDIT FACILITY
2.1 REVOLVING LOAN.
(a) Revolving Loan Commitment. Subject to the terms and conditions set
forth herein, the Lender agrees to make loans (collectively, the "REVOLVING
LOAN") to the Borrower, in Dollars, at any time and from time to time, during
the period from and including the Effective Date to but not including the
Revolving Loan Maturity Date (or such earlier date if the Revolving Committed
Amount has been terminated as provided herein); provided, however, that (i) the
sum of the aggregate amount of the Revolving Loan outstanding plus the aggregate
amount of LOC Obligations outstanding shall not exceed the Revolving Committed
Amount, as adjusted pursuant to Section 2.1(b) and Section 2.1(e). Subject to
the terms of
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this Credit Agreement (including Section 3.3), the Borrower may borrow, repay
and reborrow the Revolving Loan.
(b) Annual Reduction of Revolving Committed Amount. Annually, the
Revolving Committed Amount shall be reduced by $4,000,000 on each Annual
Reduction Date.
(c) Method of Borrowing for Revolving Loan. By no later than 2:00 p.m.
(Tampa, Florida time) the same Business Day of any requested borrowing of the
Revolving Loan, the Borrower shall submit a written Notice of Borrowing
substantially in the form of EXHIBIT 2.1(C) to the Lender setting forth (A) the
amount requested, (B) whether such Revolving Loan shall accrue interest at the
Adjusted Base Rate, the Adjusted Prime Rate or the Adjusted Eurodollar Rate, (C)
with respect to a Revolving Loan that will be a Eurodollar Loan, the Interest
Period applicable thereto, and (D) certification that the Borrower has complied
in all respects with Section 5.2. Any amount of the outstanding Revolving Loan
for which Borrower has not selected interest at the Adjusted Prime Rate or the
Adjusted Eurodollar Rate shall be considered a Base Rate Loan.
(d) Funding of Revolving Loan. Upon receipt of a Notice of Borrowing, the
amount of the requested portion of the Revolving Loan will then be made
available to the Borrower by the Lender by crediting the account of the Borrower
on the books of the Lender or by such other manner as the Borrower and the
Lender may agree.
(e) Reductions of Revolving Committed Amount. Upon at least five (5)
Business Days' notice, the Borrower shall have the right to permanently
terminate or reduce the aggregate unused amount of the Revolving Committed
Amount at any time or from time to time; provided that (i) each partial
reduction shall be in an aggregate amount at least equal to $1,000,000 and in
integral multiples of $1,000,000 above such amount, and (ii) no reduction shall
be made which would reduce the Revolving Committed Amount to an amount less than
the aggregate amount of the outstanding Revolving Loan. Any reduction in (or
termination of) the Revolving Committed Amount shall be permanent and may not be
reinstated.
(f) Revolving Note. The Revolving Loan made by the Lender shall be
evidenced by a duly executed promissory note of the Borrower to the Lender in
the face amount of the Revolving Loan in substantially the form of EXHIBIT
2.1(F).
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which the Lender may
reasonably require (so long as such terms and conditions do not impose any
financial obligation on or require any Lien (not otherwise contemplated by this
Agreement) to be given by any Credit Party or conflict with any obligation of,
or detract from any action which may be taken by, any Credit Party or their
Subsidiaries under this Agreement), Lender shall issue letters of credit (the
"LETTERS OF CREDIT") for the account of the Borrower or any of its Subsidiaries,
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23
from the Effective Date until the Revolving Loan Maturity Date; provided,
however, that (i) the aggregate amount of LOC Obligations shall not at any time
exceed One Million and No/100 Dollars ($1,000,000), and (ii) the sum of the
aggregate amount of LOC Obligations outstanding plus the Revolving Loan
outstanding shall not exceed the Revolving Committed Amount. The issuance and
expiry date of each Letter of Credit shall be a Business Day. Except as
otherwise expressly permitted by the Lender, no Letter of Credit shall have an
original expiry date more than one year from the date of issuance, or as
extended, shall have an expiry date extending beyond the Revolving Loan Maturity
Date. Each Letter of Credit shall be either (x) a standby letter of credit
issued to support the obligations (including pension or insurance obligations),
contingent or otherwise, of the Borrower or any of its Subsidiaries, or (y) a
commercial letter of credit in respect of the purchase of goods or services by
the Borrower or any of its Subsidiaries in the ordinary course of business. Each
Letter of Credit shall comply with the related LOC Documents.
(b) Notice. The request for the issuance of a Letter of Credit shall be
submitted to the Lender at least three (3) Business Days prior to the requested
date of issuance.
(c) Reimbursement. In the event of any drawing under any Letter of
Credit, the Lender will promptly notify the Borrower. Unless the Borrower shall
immediately notify the Lender of its intent to otherwise reimburse the Lender,
the Borrower shall be deemed to have requested a Revolving Loan at the Adjusted
Base Rate in the amount of the drawing as provided in subsection (e) hereof, the
proceeds of which will be used to satisfy the reimbursement obligations. The
Borrower shall reimburse the Lender on the day of the drawing under any Letter
of Credit either with the proceeds of a Revolving Loan obtained hereunder or
otherwise in same day funds as provided herein or in the LOC Documents. If the
Borrower shall fail to reimburse the Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum rate
equal to five percent (5%) plus the Prime Rate. The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of (but without wavier of) any rights of set-off,
counterclaim or defense to payment the applicable account party or the Borrower
may claim or have against the Lender, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation, any defense based
on any failure of the applicable account party, the Borrower or any other Credit
Party to receive consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit.
(d) Modification and Extension. The issuance of any supplement,
modification, amendment, renewal, or extensions to any Letter of Credit shall,
for purposes hereof, be treated in all respects the same as the issuance of a
new Letter of Credit hereunder.
(e) Uniform Customs and Practices. The Lender may have the Letters of
Credit be subject to The Uniform Customs and Practices for Documentary Credits,
as published as of the date of issue by the International Chamber of Commerce
(Publication No. 500 or the most recent publications, the "UCP"), in which case
the UCP may be incorporated therein and deemed in all respects to be a part
thereof.
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(f) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document, this Credit Agreement shall govern.
(g) Indemnification of Lender.
(i) In addition to its other obligations under this Credit
Agreement, the Borrower hereby agrees to protect, indemnify, pay and hold
the Lender harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees actually incurred) that the Lender may incur
or be subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit, or (B) the failure of the Lender to
honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure
or de facto government or governmental authority (all such acts or
omissions herein called "GOVERNMENT ACTS").
(ii) As between the Borrower and the Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Lender shall not be responsible for
(except in the case of (A), (B), and (C) below if the Lender has actual
knowledge to the contrary): (A) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity
or sufficiency of any instrument transferring or assigning or purporting
to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of the beneficiary of
a Letter of Credit to comply fully with conditions required in order to
draw upon a Letter of Credit; (D) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (E)
errors in interpretation of technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under a Letter of Credit or of the proceeds thereof; and (G) any
consequences arising from causes reasonably beyond the control of the
Lender, including, without limitation, any Government Acts. None of the
above shall affect, impair, or prevent the vesting of the Lender's rights
or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
the Lender, under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put
the Lender under any resulting liability to the Borrower or any other
Credit Party. It is the intention of the parties that this Credit
Agreement shall be construed and applied to protect and indemnify the
Lender against any and all risks involved in the issuance of the Letters
of Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts or
omissions, whether rightful or wrongful, of any present or future
Government Acts.
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The Lender shall not, in any way, be liable for any failure by the Lender
or anyone else to pay any drawing under any Letter of Credit as a result
of any Government Acts or any other cause reasonably beyond the control
of the Lender.
(iv) Nothing in this subjection (j) is intended to limit the
reimbursement obligation of the Borrower contained in this Section 2.2.
The obligations of the Borrower under this subjection (j) shall survive
the termination of this Credit Agreement. No act or omission of any
current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Lender to enforce any right, power or
benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (j), the Borrower shall have no obligation to indemnify the
Lender in respect of any liability incurred by the Lender to the extent
arising out of the gross negligence or willful misconduct of the Lender,
as determined by a court of competent jurisdiction. Nothing in this
Agreement shall relieve the Lender of any liability to the Borrower in
respect of any action taken by the Lender which action constitutes gross
negligence or willful misconduct of the Lender or a violation of the UCP
or Uniform Commercial Code (as applicable), as determined by a court of
competent jurisdiction.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOAN AND LETTERS OF CREDIT
3.1 INTEREST; CONVERSIONS AND CONTINUATIONS; MINIMUM AMOUNTS.
(a) Interest Rate. Any Base Rate Loan shall accrue interest at the
Adjusted Base Rate, any Eurodollar Loan shall accrue interest at the Adjusted
Eurodollar Rate applicable to such Eurodollar Loan and any Prime Rate Loan shall
accrue interest at the Adjusted Prime Rate.
(b) Default Rate of Interest. Upon the occurrence, and during the
continuance, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the aggregate amount of the outstanding Loan and
any other amounts owing hereunder or under the other Credit Documents (including
without limitation fees and expenses) shall bear interest, payable on demand, at
a per annum rate equal to 5% plus the Prime Rate.
(c) Interest Payments. Interest on any Loan shall be due and payable in
arrears on each Interest Payment Date. If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day, except that in the case of a Eurodollar
Loan where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
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(d) Continuations and Conversions. Subject to the terms of Section 5.2,
the Borrower shall have the option, on any Business Day, to continue an existing
Eurodollar Loan for a subsequent Interest Period, to convert a Base Rate Loan
into a Prime Rate Loan or into a Eurodollar Loan; to convert a Eurodollar Loan
into a Base Rate Loan or into a Prime Rate Loan, or to convert a Prime Rate Loan
into a Eurodollar Loan or into a Base Rate Loan; provided, however, that (i)
each such continuation or conversion must be requested by the Borrower pursuant
to a written Notice of Continuation/Conversion, substantially in the form of
EXHIBIT 3.1(D), in compliance with the terms set forth below, (ii) if a
Eurodollar Loan is continued or converted into a Base Rate Loan or into a Prime
Rate Loan on a day other than the last day of the Interest Period applicable
thereto, the Borrower shall pay the amount, if any, due under Section 3.12,
(iii) a Eurodollar Loan may not be continued nor may a Base Rate Loan or a Prime
Rate Loan be converted into a Eurodollar Loan during the existence and
continuation of an Event of Default, and (iv) any request to continue a
Eurodollar Loan that fails to comply with the terms hereof or any failure to
request a continuation of a Eurodollar Loan at the end of an Interest Period
shall constitute a conversion to a Base Rate Loan on the last day of the
applicable Interest Period. Each continuation/conversion must be requested by
the Borrower no later than 2:00 p.m. (Tampa, Florida time) the same Business Day
for such requested continuation/conversion pursuant to a written Notice of
Continuation/Conversion submitted to the Lender which shall set forth (x)
whether the Borrower wishes to continue or convert such Loan, or portion
thereof, and (y) if the request is to continue a Eurodollar Loan, to convert a
Base Rate Loan to a Eurodollar Loan or to convert a Prime Rate Loan to a
Eurodollar Loan, the Interest Period applicable thereto.
(e) Minimum Amounts. Each request for a Eurodollar Loan borrowing,
conversion or continuation shall be subject to the requirements that (i) each
Eurodollar Loan shall be in a minimum amount of $1,000,000 and in integral
multiples of $500,000, or the remaining amount available under the Revolving
Committed Amount, and (ii) no more than six (6) Eurodollar Loan borrowings shall
be outstanding hereunder at any one time. For the purposes of this Section, all
or any portion of a Eurodollar Loan with the same Interest Periods shall be
considered as one Eurodollar Loan, but each Eurodollar Loan borrowing with
different Interest Periods, even if they begin on the same date, shall be
considered as separate Eurodollar Loans.
3.2 PLACE AND MANNER OF PAYMENTS. All payments of principal, interest,
fees, expenses and other amounts to be made by a Credit Party under this
Agreement shall be received not later than 2:00 p.m. (Tampa, Florida time) on
the date when due, in Dollars and in immediately available funds, by the Lender
at its office in Tampa, Florida. Payments received after such time shall be
deemed to have been received on the next Business Day (but so long as received
by 5:00 p.m. (Tampa, Florida time) on the date due shall not result in an Event
of Default or Default). The Borrower shall, at the time it makes any payment
under this Agreement, specify to the Lender, the Loan, Letters of Credit, fees
or other amounts payable by the Borrower hereunder to which such payment is to
be applied (and in the event that it fails to specify, or if such application
would be inconsistent with the terms hereof, the Lender shall, allocate such
payment in such manner as the Lender may reasonably deem appropriate). Whenever
any payment hereunder shall be stated to be due on a day which is not a Business
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Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and fees for the period of such extension),
except that in the case of Eurodollar Loan, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day.
3.3 MANDATORY PREPAYMENTS.
(a) Annual Reduction Date. On each Annual Reduction Date, the Borrower
shall make a principal payment to the Lender in the manner and in an amount
necessary to prevent the sum of the aggregate amount of the Revolving Loan
outstanding plus Letters of Credit outstanding from exceeding the Revolving
Commitment Amount as it shall be reduced on the Annual Reduction Date pursuant
to Section 2.1(b).
(b) Revolving Committed Amount Exceeded. If at any time the sum of the
aggregate amount of the Revolving Loan outstanding plus LOC Obligations
outstanding exceeds the Revolving Committed Amount, the Borrower shall
immediately make a principal payment to the Lender in the manner and in an
amount necessary to be in compliance with Section 2.1.
(c) Asset Dispositions. Immediately upon receipt by a Credit Party of Net
Cash Proceeds in excess of $500,000 annually from any Asset Disposition, the
Borrower shall forward 100% of the Net Cash Proceeds of such Asset Disposition
to the Lender as a prepayment of the Loan.
(d) ssuances of Debt. Immediately upon receipt by a Credit Party or any
of its Subsidiaries of proceeds from any Debt Issuance in excess of $500,000
annually, the Borrower shall forward 100% of the Net Cash Proceeds of such Debt
Issuance to the Lender as a payment of the Loan.
3.4 FEES.
(a) Unused Revolving Loan Commitment Fees. In consideration of the
Revolving Committed Amount being made available by the Lender hereunder, the
Borrower agrees to pay to the Lender a fee equal to 0.25% on the Unused
Revolving Commitment. The Unused Revolving Loan Commitment Fees will be
calculated on the basis of a 360-day year for the actual number of days elapsed.
The Unused Revolving Loan Commitment Fees shall commence to accrue on the
Effective Date and shall be due and payable in arrears on each January 1, April
1, July 1 and October 1 (as well as on the Revolving Loan Maturity Date and on
any date that the Revolving Committed Amount is reduced) for the immediately
preceding fiscal quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.
(b) Letter of Credit Fees. The Borrower shall pay to the Lender (A) a fee
as agreed upon between the Lender and the Borrower, such fee to be paid
quarterly in arrears 15 days after the end of each fiscal quarter of the
Borrower (as well as on the Revolving Loan
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Maturity Date), and (B) the customary and reasonable charges from time to time
to the Lender (of which the Credit Parties have been notified in writing) for
its services in connection with the issuance, amendment, payment, transfer,
administration, cancellation and conversion of, and drawings under, such Letters
of Credit (collectively, the "LETTER OF CREDIT FEES").
(c) Upfront Fee. In consideration of the Revolving Committed Amount being
made available by the Lender hereunder, the Borrower has paid to the Lender an
upfront fee pursuant to the terms of that certain commitment letter dated
November 5, 1997 and accepted by Borrower November 20, 1997.
3.5 PAYMENT IN FULL AT MATURITY. On the Revolving Loan Maturity Date, the
entire outstanding principal balance of the Revolving Loan, together with
accrued but unpaid interest and all other sums owing with respect thereto, shall
be due and payable in full, unless accelerated sooner pursuant to Section 9.
3.6 COMPUTATIONS OF INTEREST.
(a) All computations of interest for Eurodollar Loans hereunder shall be
made on the basis of the actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of borrowing (or continuation or
conversion) but exclude the date of payment.
(b) All computations of interest for a Base Rate Loan or a Prime Rate
Loan hereunder shall be made on the basis of the actual number of days elapsed
over a year of 360 days. Interest shall accrue from and include the date of
borrowing (or conversion) but exclude the date of payment.
(c) It is the intent of the Lender and the Credit Parties to conform to
and contract in strict compliance with applicable usury law from time to time in
effect. All agreements between the Lender and the Borrower are hereby limited by
the provisions of this paragraph which shall override and control all such
agreements, whether now existing or hereafter arising and whether written or
oral. In no way, nor in any event or contingency (including but not limited to
prepayment or acceleration of the maturity of any obligation), shall the
interest taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Note or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction of any of
the Credit Documents or any other document, interest would otherwise be payable
in excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and such documents shall be
automatically reduced to the maximum nonusurious amount permitted under
applicable law, without the necessity of execution of any amendment or new
document. If the Lender shall ever receive anything of value which is
characterized as interest on the Loan under applicable law and which would,
apart from this provision, be in excess of the maximum lawful amount, an amount
equal to the amount which would have been excessive interest shall, without
penalty, be applied to the reduction of the principal amount owing on the Loan
and not to the payment of interest, or refunded to the Borrower or the other
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payor thereof if and to the extent such amount which would have been excessive
exceeds such unpaid principal amount of the Loan. The right to demand payment of
the Loan or any other indebtedness evidenced by any of the Credit Documents does
not include the right to receive any interest which has not otherwise accrued on
the date of such demand, and the Lender does not intend to charge or receive any
unearned interest in the event of such demand. All interest paid or agreed to be
paid to the Lender with respect to the Loan shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term (including any renewal or extension) of the Loan so that the
amount of interest on account of such indebtedness does not exceed the maximum
nonusurious amount permitted by applicable law.
3.7 CAPITAL ADEQUACY. If, after the date hereof, the Lender has
reasonably determined that the adoption or the becoming effective of, or any
change in, or any change by a Governmental Authority, central bank or comparable
agency charged with the interpretation or administration of any applicable law,
rule or regulation regarding capital adequacy, or compliance by the Lender, or
its parent corporation, with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the Lender's (or parent corporation's) capital or assets as a consequence of
its commitments or obligations hereunder to a level below that which the Lender,
or its parent corporation, could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration the Lender's (or
parent corporation's) policies with respect to capital adequacy), then, upon
notice from the Lender to the Borrower within one hundred eighty (180) days of
such determination by Lender, the Borrower shall be obligated to pay to the
Lender such additional amount or amounts as will compensate the Lender on an
after-tax basis (after taking into account applicable deductions and credits in
respect of the amount indemnified) for such reduction. Each determination by the
Lender of amounts owing under this Section shall be prima facie evidence of such
amounts.
3.8 INABILITY TO DETERMINE INTEREST RATE. If prior to the first day of
any Interest Period, the Lender shall have determined in good faith (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Lender shall give telecopy or telephonic notice thereof to the Borrower as soon
as practicable thereafter. If such notice is given (a) any Eurodollar Loan or
Base Rate Loan requested to be made on the first day of such Interest Period
shall be made as a Prime Rate Loan, (b) any Loan, or portion thereof, that was
to have been converted on the first day of such Interest Period to or continued
as a Eurodollar Loan or a Base Rate Loan shall be converted to or continued to a
Prime Rate Loan, and (c) any outstanding Eurodollar Loan shall be converted, on
the first day of such Interest Period, to a Prime Rate Loan and any outstanding
Base Rate Loan shall be converted to a Prime Rate Loan. Until the Lender has
given the Borrower notice that such conditions no longer exist (which the Lender
agrees to do promptly), no further Eurodollar Loan or Base Rate Loan shall be
made or continued as such, nor shall the Borrower have the right to convert any
Loan to a Base Rate Loan or to a Eurodollar Loan.
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3.9 ILLEGALITY. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful for
the Lender to make or maintain a Base Rate Loan or a Eurodollar Loan as
contemplated by this Credit Agreement, (a) the Lender shall promptly give
written notice of such circumstances to the Borrower (which notice shall be
promptly withdrawn by the Lender whenever such circumstances no longer exist),
(b) the commitment of the Lender hereunder to make a Eurodollar Loan, continue a
Eurodollar Loan or a Base Rate Loan as such and convert a Base Rate Loan to
Eurodollar Loan or a Eurodollar Loan to a Base Rate Loan shall forthwith be
suspended and, until such time as it shall no longer be unlawful for the Lender
to make or maintain a Base Rate Loan or a Eurodollar Loan, the Lender shall then
have a commitment only to make a Prime Rate Loan when a Base Rate Loan or a
Eurodollar Loan is requested, and (c) the Lender's Loan then outstanding as a
Base Rate Loan or a Eurodollar Loan, if any, shall be converted automatically to
a Prime Rate Loan on the respective last days of the then current Interest
Periods with respect to such Loan or within such earlier period as required by
law. If any such conversion of a Base Rate Loan or a Eurodollar Loan occurs on a
day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to the Lender such amounts, if any, as may be
required pursuant to Section 3.12.
3.10 REQUIREMENTS OF LAW. If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
the Lender, or compliance by the Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date:
(a) shall subject the Lender to any tax of any kind whatsoever with
respect to any Letter of Credit, Base Rate Loan or Eurodollar Loan made
by it or its obligation to make a Base Rate Loan or a Eurodollar Loan, or
change the basis of taxation of payments to the Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 3.11 (including
Non-Excluded Taxes imposed solely by reason of any failure of the Lender
to comply with its obligations under Section 3.11(b)) and changes in
taxes measured by or imposed upon the overall net income, or franchise
tax (imposed in lieu of such net income tax), of the Lender or its
applicable lending office, branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of the Lender which is not otherwise included in the
determination of the Base Rate or Eurodollar Rate hereunder; or
(c) shall impose on the Lender any other condition (excluding any
tax of any kind whatsoever);
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and the result of any of the foregoing is to increase the cost to the Lender, by
an amount which the Lender reasonably deems to be material, of making,
converting into, continuing or maintaining a Base Rate Loan or a Eurodollar Loan
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, upon notice to the Borrower from the Lender in accordance herewith
within one hundred eighty (180) days of the date Lender becomes aware of such
adoption or such change, the Borrower shall be obligated to promptly pay the
Lender, upon its demand, any additional amounts reasonably necessary to
compensate the Lender on an after-tax basis (after taking into account
applicable deductions and credits in respect of the amount indemnified) for such
increased cost or reduced amount receivable, provided that, in any such case,
the Borrower may elect to convert the Base Rate Loan or Eurodollar Loan made by
the Lender hereunder to a Prime Rate Loan by giving the Lender at least one
Business Day's notice of such election, in which case the Borrower shall
promptly pay to the Lender, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 3.12. If the Lender becomes entitled
to claim any additional amounts pursuant to this Section 3.10, it shall provide
prompt notice thereof to the Borrower certifying (x) that one of the events
described in this Section 3.10 has occurred and describing in reasonable detail
the nature of such event, (y) as to the increased cost or reduced amount
resulting from such event, and (z) as to the additional amount demanded by the
Lender and a reasonably detailed explanation of the calculation thereof. Such a
certificate as to any additional amounts payable pursuant to this Section 3.10
submitted by the Lender to the Borrower shall be prima facie evidence of the
matters contained therein. This covenant shall survive the termination of this
Credit Agreement and the payment of the Loan and all other amounts payable
hereunder.
3.11 TAXES.
(a) Except as provided below in this Section 3.12, all payments made by
the Borrower under this Credit Agreement and any Note shall be made free and
clear of, and without deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any court, or governmental body, agency or other
official, excluding (x) taxes measured by or imposed upon the overall net income
of the Lender or its applicable lending office, or any branch or affiliate
thereof, and (y) all franchise taxes, branch taxes, taxes on doing business or
taxes on the overall capital or net worth of the Lender or its applicable
lending office, or any branch or affiliate thereof, in each case imposed in lieu
of net income taxes: (i) by the jurisdiction under the laws of which the Lender,
applicable lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within which such
jurisdiction is located or any political subdivision thereof; or (ii) by reason
of any connection between the jurisdiction imposing such tax and the Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from the Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement or any Note. If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Lender hereunder or under any Note, (A) the amounts so payable to
the Lender
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shall be increased to the extent necessary to yield to the Lender (after payment
of all Non-Excluded Taxes) interest or any such other amount payable hereunder
at the rates or in the amounts specified in this Credit Agreement and any Note;
provided, however, that the Borrower shall be entitled to deduct and withhold
any Non-Excluded Taxes whenever any Non-Excluded Taxes are payable by the
Borrower, and (B) as promptly as possible after the Lender's request, the
Borrower shall send to the Lender proof of payment thereof in a form acceptable
to Lender. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Lender the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Lender for any incremental taxes, interest or penalties that may become
payable by the Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Credit Agreement and the
payment of the Loan and all other amounts payable hereunder.
(b) In connection with this transaction there may or may not be due
certain documentary stamp taxes and/or intangible taxes imposed by the State of
Florida (the "FLORIDA TAXES"). In addition to (and not in limitation of) the
indemnification with respect to tax liabilities set forth above, the Borrower
agrees to indemnify the Lender, its directors, officers, agents and employees
from and against any and all liability, damage, loss, cost, expense, or
reasonable attorney fees actually incurred or sustained by the Lender or its
directors, officers, agents or employees on account of or arising from any claim
or action raised by, filed or brought by or in the name of any Florida
governmental or administrative department with respect to non-payment of the
Florida Taxes against the Lender, or any of its directors, officers, agents or
employees.
3.12 INDEMNITY. The Borrower promises to indemnify the Lender and to hold
the Lender harmless from any loss or expense which the Lender may sustain or
incur (other than through the Lender's gross negligence or willful misconduct)
as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of a Eurodollar Loan after the Borrower has
given notice thereof in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given notice thereof in accordance with the provisions of this
Credit Agreement, and (c) the making of a prepayment of a Eurodollar Loan on a
day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to (i) the amount of interest which
would have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Eurodollar Loan provided for herein
(excluding, however, the Applicable Margin included therein, if any) minus (ii)
the amount of interest (as reasonably determined by the Lender) which would have
accrued to the Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. The
agreements in this Section shall survive the termination of this Credit
Agreement and the payment of the Loan and all other amounts payable hereunder.
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SECTION 4
GUARANTY
4.1 GUARANTY OF PAYMENT. Subject to Section 4.7 below, each of the
Guarantors hereby, jointly and severally, unconditionally guarantees to the
Lender, the prompt payment of the Credit Party Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise). The Guarantors additionally, jointly and severally, unconditionally
guarantee to the Lender the timely performance of all other obligations under
the Credit Documents. This Section 4 Guaranty (the "GUARANTY") is a guaranty of
payment and not of collection and is a continuing guaranty and shall apply to
all Credit Party Obligations whenever arising.
4.2 OBLIGATIONS UNCONDITIONAL. The obligations of the Guarantors
hereunder are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Credit
Documents, or any other agreement or instrument referred to therein, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever (other than payment in full or complete performance
hereunder; subject to any provisions herein which expressly survive the
termination of this Credit Agreement and the payment of the Loan and all other
amounts payable hereunder) which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor. Each Guarantor agrees that this
Guaranty may be enforced by the Lender without the necessity at any time of
resorting to or exhausting any other security or collateral and without the
necessity at any time of having recourse to the Note or any of the other Credit
Documents or any collateral, if any, hereafter securing the Credit Party
Obligations or otherwise and each Guarantor hereby waives the right to require
the Lender to proceed against the Borrower or any other Person (including a
co-guarantor) or to require the Lender to pursue any other remedy or enforce any
other right. Each Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Credit Party Obligations for amounts paid under this
Guaranty until such time as the Lender has been paid in full and the Commitment
has been terminated. Each Guarantor further agrees that nothing contained herein
shall prevent the Lender from suing on the Note or any of the other Credit
Documents or foreclosing its security interest in or Lien on any collateral, if
any, securing the Credit Party Obligations or from exercising any other rights
available to it under this Credit Agreement, the Note, any of the other Credit
Documents, or any other instrument of security, if any, and the exercise of any
of the aforesaid rights and the completion of any foreclosure proceedings shall
not constitute a discharge of any of any Guarantor's obligations hereunder; it
being the purpose and intent of each Guarantor that its obligations hereunder
shall be absolute, independent and unconditional under any and all
circumstances. Neither any Guarantor's obligations under this Guaranty nor any
remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Borrower or by reason of the
bankruptcy or insolvency of the Borrower. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Credit Party
Obligations and notice of or proof of reliance by the Lender upon this Guaranty
or
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acceptance of this Guaranty. The Credit Party Obligations, and any of them,
shall conclusively be deemed to have created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty. All
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Lender, on the other hand, likewise shall be conclusively presumed to have
been had or consummated in reliance upon this Guaranty.
4.3 MODIFICATIONS. Each Guarantor agrees that (a) all or any part of the
security now or hereafter held for the Credit Party Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) the Lender shall
not have any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Credit
Party Obligations or the properties subject thereto; (c) the time or place of
payment of the Credit Party Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for payment under
the Credit Documents may be granted indulgences generally; (e) any of the
provisions of the Note or any of the other Credit Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; and (g) any deposit
balance for the credit of the Borrower or any other party liable for the payment
of the Credit Party Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Credit Party Obligations, all without notice to or
further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
4.4 WAIVER OF RIGHTS. Each Guarantor expressly waives to the fullest
extent permitted by applicable law: (a) notice of acceptance of this Guaranty by
the Lender and of all extensions of credit to the Borrower by the Lender; (b)
presentment and demand for payment or performance of any of the Credit Party
Obligations; (c) protest and notice of dishonor or of default (except as
specifically required in the Credit Agreement) with respect to the Credit Party
Obligations or with respect to any security therefor; (d) notice of the Lender
obtaining, amending, substituting for, releasing, waiving or modifying any
security interest, lien or encumbrance, if any, hereafter securing the Credit
Party Obligations, or the Lender's subordinating, compromising, discharging or
releasing such security interests, liens or encumbrances, if any; (e) all other
notices to which such Guarantor might otherwise be entitled; and (f) demand for
payment under this Guaranty.
4.5 REINSTATEMENT. The obligations of the Guarantors under this Section 4
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Credit Party Obligations
is rescinded or must be otherwise restored by any holder of any of the Credit
Party Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Lender on demand for all reasonable costs and expenses (including, without
limitation, reasonable fees of counsel) actually incurred by the Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against
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any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.6 REMEDIES. The Guarantors agree that, as between the Guarantors, on
the one hand, and the Lender, on the other hand, the Credit Party Obligations
may be declared to be forthwith due and payable as provided in Section 9 (and
shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and payable), such
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors. The Guarantors
acknowledge and agree that their obligations hereunder are secured in accordance
with the terms of the Security Agreements and the other Collateral Documents and
that the Lender may exercise its remedies thereunder in accordance with the
terms thereof.
4.7 LIMITATION OF GUARANTY. Notwithstanding any provision to the contrary
contained herein or in any of the other Credit Documents, to the extent the
obligations of any Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state
or federal law relating to fraudulent conveyances or transfers) then the
obligations of such Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS. The obligation of the Lender to make the initial
Extension of Credit is subject to satisfaction of the following conditions:
(a) Executed Credit Documents. Receipt by the Lender of duly executed
copies of: (i) this Credit Agreement; (ii) the Note; (iii) the Collateral
Documents and (iv) all other Credit Documents, each in form and substance
reasonably acceptable to the Lender.
(b) Corporate Documents. Receipt by the Lender of the following:
(i) CHARTER DOCUMENTS. Copies of the articles or certificates of
incorporation or other charter documents of each Credit Party certified
to be true and complete as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Effective Date.
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(ii) BYLAWS. A copy of the bylaws of each Credit Party certified by
a secretary or assistant secretary of such Credit Party to be true and
correct as of the Effective Date.
(iii) RESOLUTIONS. Copies of resolutions of the Board of Directors
of each Credit Party approving and adopting the Credit Documents to which
it is a party, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a secretary of assistant
secretary of such Credit Party to be true and correct and in force and
effect as of the Effective Date.
(iv) GOOD STANDING. Copies of (A) certificates of good standing,
existence or its equivalent with respect to each Credit Party certified
as of a recent date by the appropriate Governmental Authorities of the
state or other jurisdiction of incorporation and each other jurisdiction
in which the failure to so qualify and be in good standing would have a
Material Adverse Effect on the business or operations of a Credit Party
in such jurisdiction and (B) to the extent available, a certificate
indicating payment of all corporate franchise taxes certified as of a
recent date by the appropriate governmental taxing authorities.
(v) INCUMBENCY. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary to be true and correct as
of the Effective Date.
(c) Certified Copies. Certified copies of all documents evidencing any
necessary corporate action, authorizations, consents, approvals, registrations
and filings required to be made or obtained by each Credit Party with respect to
the Credit Documents.
(d) Financial Statements. Receipt by the Lender of the quarterly
consolidated financial statements of the Credit Parties for the fiscal quarter
ending September 30, 1997, prepared by Borrower.
(e) Opinion of Counsel. Receipt by the Lender of an opinion, or opinions
(which shall cover, among other things, authority, legality, validity, binding
effect, enforceability and attachment and perfection of liens), reasonably
satisfactory to the Lender, addressed to the Lender and dated as of the
Effective Date, from legal counsel to the Credit Parties.
(f) Personal Property Collateral. The Lender shall have received, in form
and substance reasonably satisfactory to the Lender:
(i) searches of Uniform Commercial Code ("UCC") filings in the
jurisdiction of the chief executive office of each Credit Party and each
jurisdiction where any Collateral is located or where a filing would need
to be made in order to perfect the Lender's security interest in the
Collateral or where the Lender deems
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appropriate; copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than Permitted
Liens;
(ii) duly executed UCC financing statements for each appropriate
jurisdiction as is necessary, in the Lender's sole discretion, to perfect
the Lender's security interest in the Collateral;
(iii) searches of ownership of intellectual property in the
appropriate governmental offices and such patent/trademark/copyright
filings as requested by the Lender in order to perfect the Lender's
security interest in the Collateral;
(iv) all stock certificates evidencing the stock pledged to the
Lender pursuant to the Pledge Agreements, together with duly executed in
blank undated stock powers attached thereto;
(v) all instruments and chattel paper in the possession of a Credit
Party, as required by the Security Agreements, together with allonge or
assignments as may be necessary or appropriate to perfect the Lender's
security interest in the Collateral;
(vi) at the request of the Lender, copies of the Assigned Agreements
(as defined in the Security Agreement), together with assignments and
third party consents as may be necessary or appropriate to perfect the
Lender's security interest in such Assigned Agreements; and
(g) Evidence of Insurance. Receipt by the Lender of certificates of
insurance of the Credit Parties evidencing that all property of the Credit
Parties has been insured in amounts and against risks customarily insured
against by similar businesses in such localities where the Credit Parties are
located. Said insurance shall include, but not be limited to, liability and
casualty insurance meeting the requirements set forth in the Credit Documents,
including, but not limited to, naming the Lender as loss payee on all casualty
policies and as an additional insured on all liability policies.
(h) Material Adverse Effect. There shall not have occurred a change since
June 30, 1997, that has had or could reasonably be expected to have a Material
Adverse Effect.
(i) Litigation. There shall not exist any pending or threatened action,
suit, investigation or proceeding against a Credit Party or any of their
Subsidiaries that would have or could reasonably be expected to have a Material
Adverse Effect.
(j) Fees and Expenses. Payment by the Credit Parties of all fees and
expenses owed by them to the Lender.
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(k) Pay-Off Letters - Indebtedness. The Lender shall have received
pay-off letters with respect to all outstanding Indebtedness except for any
Permitted Indebtedness permitted pursuant to Section 6.10 and Section 8.1.
(l) Pay-Off Letters - Liens. The Lender shall have received pay-off
letters and releases and UCC Termination Statements (or satisfactory assurances
with respect thereto) with respect to existing liens and encumbrances affecting
the Collateral.
(m) Payment of Indebtedness. The Lender shall have received evidence of
repayment of all outstanding Indebtedness under Borrower's existing credit
agreements and termination of commitments thereunder except for any permitted
pursuant to Section 6.10 and Section 8.1.
(n) Other. Receipt by the Lender of such other documents, instruments,
agreements or information as may be reasonably and timely requested by the
Lender, including, but not limited to, information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual or contingent), real
estate leases, material contracts, debt agreements, property ownership and
contingent liabilities of the Borrower and its Subsidiaries.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT. In addition to the conditions
precedent stated elsewhere herein, the Lender shall not be obligated to make a
distribution of the Loan or to issue or extend a Letter of Credit unless:
(a) Notice. The Borrower shall have delivered in the case of any new
Revolving Loan distribution, a Notice of Borrowing, duly executed and completed,
by the time specified in Section 2.1.
(b) Representations and Warranties. The representations and warranties
made by the Credit Parties in any Credit Document are true and correct in all
material respects at and as if made as of such date except to the extent they
expressly relate to an earlier date;
(c) No Default. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto;
(d) No Material Adverse Effect. No occurrence or lack thereof shall have
caused any Material Adverse Effect; and
(e) Availability. Immediately after giving effect to the making of a
Revolving Loan distribution (and the application of the proceeds thereof) or to
the issuance of a Letter of Credit, the aggregate outstanding principal balance
of the Revolving Loan plus LOC Obligations outstanding shall not exceed the
Revolving Committed Amount.
The delivery of each Notice of Borrowing and each request for issuance of a
Letter of Credit shall constitute a representation and warranty by the Borrower
of the correctness of the matters specified in subsections (b), (c), (d) and (e)
above.
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SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Lender that:
6.1 FINANCIAL CONDITION. The financial statements delivered to the Lender
pursuant to Section 5.1(d) and Sections 7.1(a) and (b): (a) have been prepared
in accordance with GAAP and (b) present fairly, in all material respects, the
consolidated and consolidating (as applicable) financial condition, results of
operations and cash flows of the Credit Parties and their Subsidiaries as of
such date and for such periods. Since June 30, 1997, there has been no sale,
transfer or other disposition by any Credit Party or any of their Subsidiaries
of any material part of the business or property of the Credit Parties, taken as
a whole, and no purchase or other acquisition by any of them of any business or
property (including any capital stock of any other Person) material in relation
to the consolidated financial condition of the Credit Parties, taken as a whole,
in each case, which is not (i) reflected in the most recent financial statements
delivered to the Lender pursuant to Section 5.1(d) or Section 7.1 or in the
notes thereto or (ii) otherwise permitted by the terms of this Credit Agreement.
6.2 NO MATERIAL CHANGE. Since June 30, 1997, there has been no
development or event relating to or affecting a Credit Party or any of their
Subsidiaries which has had or could reasonably be expected to have a Material
Adverse Effect.
6.3 ORGANIZATION AND GOOD STANDING. Each Credit Party (a) is a
corporation or other legal entity duly organized or formed, validly existing and
in good standing under the laws of the state of its incorporation or formation;
(b) is duly qualified as a foreign corporation or other legal entity and in good
standing under the laws of each jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification (except for
jurisdictions in which such failure to so qualify or to be in good standing
could not reasonably be expected to have a Material Adverse Effect); (c) has the
requisite corporate power and authority and the legal right to own, pledge,
mortgage or otherwise encumber and operate its properties, to lease the property
it operates under lease, and to conduct its business as now, heretofore and
proposed to be conducted; (d) has all licenses, permits, consents or approvals
from or by, and has or will have made all filings with, and has or will have
given all notices to, all governmental authorities having jurisdiction, to the
extent required for such ownership, operation and conduct (except for such
licenses, etc., the absence of which, and such filings and notices, as to which
the failure to make or give, could not reasonably be expected to have a Material
Adverse Effect); (e) is in compliance with its certificate or articles of
incorporation and by-laws; and (f) is in compliance with all applicable
provisions of law, statute, order, rule, regulation, or judgment entered by any
court, including, without limitation, ERISA, those regarding the collection,
payment and deposit of employees' income, unemployment and Social Security taxes
and those relating to environmental matters where the failure to comply could
reasonably be expected to have a Material Adverse Effect.
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6.4 DUE AUTHORIZATION. Each Credit Party (a) has the requisite corporate
power and authority to execute, deliver and perform its respective obligations
under this Credit Agreement and the other Credit Documents to which it is a
party and to incur its respective obligations herein and therein provided for
and (b) is duly authorized to, and has been authorized by all necessary
corporate action, to execute, deliver and perform this Credit Agreement and the
other Credit Documents to which it is a party.
6.5 NO CONFLICTS. Neither the execution and delivery of the Credit
Documents, nor the consummation of the transactions contemplated therein, nor
performance of and compliance with the terms and provisions thereof by such
Credit Party will (a) violate or conflict with any provision of its articles or
certificate of incorporation or bylaws, (b) violate, contravene or conflict with
any Requirement of Law or any other law, regulation (including, without
limitation, Regulation U or Regulation X), order, writ, judgment, injunction,
decree or permit applicable to it, (c) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound, the violation of
which could reasonably be expected to have a Material Adverse Effect, or (d)
result in or require the creation of any Lien (other than those contemplated in
or created in connection with the Credit Documents) upon or with respect to its
properties.
6.6 CONSENTS. Except for consents, approvals and authorizations which
have been obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents by such Credit Party.
6.7 ENFORCEABLE OBLIGATIONS. This Credit Agreement and the other Credit
Documents have been duly executed and delivered by each Credit Party thereto and
constitute legal, valid and binding obligations of each Credit Party thereto
enforceable against such Credit Party in accordance with their respective terms,
except as may be limited by bankruptcy or insolvency laws or similar laws
affecting creditors' rights generally or by general equitable principles.
6.8 NO DEFAULT. No Credit Party is in default in any respect under any
contract, lease, loan agreement, indenture, mortgage, security agreement or
other agreement or obligation to which it is a party or by which any of its
properties is bound which default could have or could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred or
exists except as previously disclosed in writing to the Lender.
6.9 OWNERSHIP. Each Credit Party is the owner of, and has good and
marketable title to, all of its respective assets and none of such assets is
subject to any Lien other than Permitted Liens.
6.10 INDEBTEDNESS. As of the date hereof, the Credit Parties have no
Indebtedness except as set forth on SCHEDULE 6.10.
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6.11 LITIGATION. Except as disclosed in SCHEDULE 6.11, there are no
actions, suits or legal, equitable, arbitration or administrative proceedings,
pending or, to the knowledge of any Credit Party, threatened against, the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
6.12 TAXES. Each Credit Party has filed, or caused to be filed, all tax
returns (federal, state, local and foreign) required to be filed (other than
those the failure to file could not reasonably be expected to have a Material
Adverse Effect) and paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other taxes, fees, assessments
and other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangible taxes) owing by it, except for such taxes (i) which
are not yet delinquent or (ii) that are being contested in good faith and by
proper proceedings, or (iii) for which adequate reserves are being maintained in
accordance with GAAP.
6.13 COMPLIANCE WITH LAW. Each Credit Party is in compliance with all
Requirements of Law and all other laws, rules, regulations, orders and decrees
(including without limitation Environmental Laws) applicable to it, or to its
properties, unless such failure to comply could not reasonably be expected to
have a Material Adverse Effect.
6.14 ERISA. Except as could not reasonably be expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has occurred,
and, to the best knowledge of the Credit Parties, no event or condition has
occurred or exists as a result of which any Termination Event could reasonably
be expected to occur, with respect to any Plan of a Credit Party or ERISA
Affiliate; (ii) no "accumulated funding deficiency" as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan of a Credit Party or ERISA Affiliate; (iii)
each Plan of a Credit Party has been maintained, operated, and funded in
compliance with its own terms and in material compliance with the provisions of
ERISA, the Code, and any other applicable federal or state laws; and (iv) no
lien in favor or the PBGC or a Plan has arisen or is reasonably likely to arise
on account of any Plan of a Credit Party.
(b) The accumulated benefit obligation ("ABO") of each Single Employer
Plan of a Credit Party (determined in accordance with generally accepted
accounting principles) as of the most recent annual audited financial statements
is equal to or exceeds the current value of the assets of such Single Employer
Plan.
(c) Neither the Credit Parties nor any ERISA Affiliate has incurred, or,
to the best of knowledge of the Credit Parties, are reasonably expected to
incur, any withdrawal liability under ERISA to any Multiemployer Plan or
Multiple Employer Plan. Neither the Credit Parties nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in reorganization
(within the meaning of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within
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the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of the Credit Parties, reasonably expected to be in reorganization,
insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility has occurred
with respect to a Plan of the Credit Parties which has subjected or is
reasonably likely to subject the Credit Parties to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which the Credit Parties have agreed
or is required to indemnify any person against any such liability.
(e) The present value (determined using actuarial and other assumptions
which are reasonable with respect to the benefits provided and the employees
participating) of the liability of the Credit Parties for post-retirement
welfare benefits to be provided to their current and former employees under
Plans of the Credit Parties which are welfare benefit plans (as defined in
Section 3(1) of ERISA), net of all assets under all such Plans allocable to such
benefits, are reflected on the Financial Statements in accordance with FASB 106.
(f) Each plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code apply
has been administered in compliance in all material respects with such sections.
6.15 SUBSIDIARIES. Set forth on SCHEDULE 6.15 is a complete and accurate
list of all Subsidiaries of each Credit Party as of the date hereof. Information
on SCHEDULE 6.15 includes jurisdiction of incorporation, the number of shares of
each class of capital stock or other equity interests outstanding, the number
and percentage of outstanding shares of each class owned (directly or
indirectly) by such Credit Party; and the number and effect, if exercised, of
all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto. The outstanding capital stock and
other equity interests of all such Subsidiaries is validly issued, fully paid
and non-assessable and is owned by each such Credit Party, directly or
indirectly, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). Other than as set forth
in SCHEDULE 6.15, no Subsidiary of any Credit Party has outstanding any
securities convertible into or exchangeable for its capital stock nor does any
such Person have outstanding any rights to subscribe for or to purchase or any
options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to its capital stock. The list of Subsidiaries shall be
updated from time to time by the Borrower by giving written notice thereof to
the Lender.
6.16 USE OF PROCEEDS; MARGIN STOCK. The proceeds of the Loan hereunder
will be used solely for the purposes specified in Section 7.10. None of the
Credit Parties owns any "margin stock" as defined in Regulation U or Regulation
G.
6.17 GOVERNMENT REGULATION. No Credit Party is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment
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Company Act of 1940 or the Interstate Commerce Act, each as amended. In
addition, no Credit Party is (a) an "investment company" registered or required
to be registered under the Investment Company Act of 1940, as amended, or
controlled by such a company, or (b) a "holding company," or a "Subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "Subsidiary" or a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended. To the best of the Borrower's
knowledge, no director, executive officer or individual shareholder beneficially
owing five percent (5%) or more of the common stock of the Borrower or any of
its Subsidiaries is a director, executive officer or principal shareholder of
the Lender as of the date hereof. For the purposes hereof the terms "director"
and "executive officer" (when used with reference to the Lender) have the
respective meanings assigned thereto in Regulation O issued by the Board of
Governors of the Federal Reserve System.
6.18 ENVIRONMENTAL MATTERS. To the best of Borrower's knowledge, except
as set forth on SCHEDULE 6.18 and except as could not reasonably be expected to
have a Material Adverse Effect:
(a) Each of the Real Properties and all operations at the Real
Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Real
Properties or the businesses operated by the Borrower or any of their
Subsidiaries (the "BUSINESSES"), and there are no conditions relating to
the Businesses or Real Properties that could reasonably be expected to
give rise to liability under any applicable Environmental Laws.
(b) No Credit Party has received any written notice of, or inquiry
from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
Hazardous Materials or compliance with Environmental Laws with regard to
any of the Real Properties or the Businesses, nor does the Borrower or
any of its Subsidiaries have knowledge that any such notice is being
threatened.
(c) Hazardous Materials have not been transported or disposed of
from the Real Properties, or generated, treated, stored or disposed of
at, on or under any of the Real Properties or any other location, in each
case by, or on behalf or with the permission of, the Borrower or any of
its Subsidiaries in a manner that could reasonably be expected to give
rise to liability under any applicable Environmental Law.
(d) No judicial proceeding or governmental or administrative action
is pending or threatened, under any Environmental Law to which Borrower
or any of its Subsidiaries is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Borrower or
any of its Subsidiaries, the Real Properties or the Businesses, in any
amount reportable under the federal Comprehensive Environmental Response,
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Compensation and Liability Act or any analogous state law, except
releases in compliance with any Environmental Laws.
(e) There has been no material release or threat of release of
Hazardous Materials at or from the Real Properties, or arising from or
related to the operations (including, without limitation, disposal) of
the Borrower or any of its Subsidiaries in connection with the Real
Properties or otherwise in connection with the Businesses.
(f) None of the Real Properties contains, or has previously
contained, any Hazardous Materials at, on or under the Real Properties in
amounts or concentrations that, if released, constitute or constituted a
violation of, or could give rise to liability under, Environmental Laws
and that would have a Material Adverse Effect on any of the parties
hereto or their Subsidiaries.
(g) No Credit Party has assumed any liability of any Person (other
than another Credit Party) under any Environmental Law.
6.19 INTELLECTUAL PROPERTY. Each Credit Party owns, or has the legal
right to use, all patents, trademarks, tradenames, copyrights, licenses,
technology, know-how and processes, or other intellectual property rights (the
"INTELLECTUAL PROPERTY") necessary for each of them to conduct its business as
currently conducted except for those the failure to own or have such legal right
to use could not have or reasonably be expected to have a Material Adverse
Effect. Each Credit Party's ownership and rights pertaining to such Intellectual
Property are free from all burdensome restrictions. Set forth on SCHEDULE 6.19
is a list of all Intellectual Property owned by each Credit Party or that any
Credit Party has the right to use as of the date hereof. Except as provided on
SCHEDULE 6.19, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does any Credit
Party know of any such claim, and to the Credit Parties' knowledge the use of
such Intellectual Property by the Borrower or any of its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that in the aggregate, could not have or reasonably be expected to have a
Material Adverse Effect.
6.20 SOLVENCY. Each Credit Party is and, after consummation of the
transactions contemplated by this Credit Agreement, will be Solvent.
6.21 INVESTMENTS. All Investments of each Credit Party are either
Permitted Investments or otherwise permitted by the terms of this Credit
Agreement.
6.22 LOCATIONS OF COLLATERAL; CHIEF EXECUTIVE OFFICES. Set forth on
SCHEDULE 6.22(A) is a list of all locations where, as of the date hereof, any
tangible and intangible assets of a Credit Party are located, including county
and state where located. Set forth on SCHEDULE 6.22(B) is the chief executive
office and principal place of business of each Credit Party, as of the date
hereof.
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6.23 DISCLOSURE. Neither this Agreement nor any financial statements
delivered to the Lender nor any other document, certificate or written statement
furnished to the Lender by or on behalf of any Credit Party in connection with
the transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading.
6.24 LICENSES, ETC. The Credit Parties have obtained and hold in full
force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way and
other rights, consents and approvals which are necessary for the operation of
their respective businesses as presently conducted, except where the failure to
obtain same could not be reasonably expected to have a Material Adverse Effect.
6.25 NO BURDENSOME RESTRICTIONS. No Credit Party is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.
6.26 COLLATERAL DOCUMENTS. The Collateral Documents create valid security
interests in the Collateral purported to be covered thereby, which security
interests and Liens are and will remain perfected security interests and Liens,
prior to all other Liens other than Permitted Liens. Each of the representations
and warranties made by the Borrower and its Subsidiaries in the Collateral
Documents is true and correct in all material respects.
6.27 DISCONTINUED OPERATIONS. The Discontinued Operations have been
wound-up and are no longer in operation; provided, however, Meritec Solutions,
Inc. is in existence for the purpose of being parties to leases that are in
force as of the date hereof (and any subleases relating thereto, but excluding
any leases of any other real property).
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loan and LOC Obligations, together with
interest and fees and other obligations hereunder, have been paid in full and
the Commitment and Letters of Credit hereunder shall have terminated:
7.1 INFORMATION COVENANTS. The Borrower will furnish, or cause to be
furnished, to the Lender:
(a) Annual Financial Statements. The earlier of ten (10) days from the
date of completion or within one hundred thirty (130) days after the close of
each fiscal year of the Borrower, financial statements which shall include a
consolidated balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such fiscal year, together with related
consolidated statements of operation and retained earnings and of cash flows for
such
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46
fiscal year, setting forth in comparative form consolidated figures for the
preceding fiscal year, all such financial information described above
accompanied by a certificate (with supporting details) to be in reasonable form
and detail and audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Lender and whose opinion shall be
to the effect that such financial statements have been prepared in accordance
with GAAP (except for changes with which such accountants concur) and shall not
be limited as to the scope of the audit or qualified in any manner unacceptable
to the Lender.
(b) Quarterly Financial Statements. The earlier of ten (10) days from the
date of completion or within sixty (60) days after the close of each fiscal
quarter of the Borrower, (i) a consolidated balance sheet and income statement
of the Borrower and its Subsidiaries, as of the end of such fiscal quarter,
together with related consolidated statements of operations and retained
earnings and of cash flows for such fiscal quarter in each case setting forth in
comparative form consolidated figures for (A) the corresponding period of the
preceding fiscal year and (B) management's proposed budget for such period, all
such financial information described above to be in reasonable form and detail
and reasonably acceptable to the Lender, and accompanied by a compliance
certificate (with supporting details) of the chief financial officer of the
Borrower to the effect that such quarterly financial statements fairly present
in all material respects the financial condition of the Borrower and its
Subsidiaries and have been prepared in accordance with GAAP, subject to changes
resulting from audit and normal year-end audit adjustments and (ii) a management
discussion and analysis of operating results for such fiscal quarter.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate of
the chief financial officer of the Borrower substantially in the form of EXHIBIT
7.1(C), (i) demonstrating compliance with Sections 8.1(d), 8.5, 8.6 and 8.7 and
with the financial covenants contained in Section 7.2 by calculation thereof as
of the end of each such fiscal period, and (ii) stating that no Default or Event
of Default exists, or if any Default or Event of Default does exist, specifying
the nature and extent thereof and what action the Borrower proposes to take with
respect thereto.
(d) Compliance With Certain Provisions of the Credit Agreement. Within
one hundred thirty (130) days after the end of each fiscal year of the Borrower,
a certificate of the chief financial officer of the Borrower containing
information regarding the amount of any Asset Dispositions in excess of
$500,000, and Debt Issuances that were made during the prior fiscal year.
(e) Accountant's Certificate. Within the period for delivery of the
annual financial statements provided in Section 7.1(a), a certificate of the
accountants conducting the annual audit stating that they have reviewed this
Credit Agreement as to financial matters and stating further whether, in the
course of their audit, they have become aware of any Default or Event of Default
and, if any such Default or Event of Default exists, specifying the nature and
extent thereof.
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47
(f) Auditor's Reports. Promptly upon receipt thereof, a copy of any
"management letter" submitted by independent accountants to the Borrower or any
of its Subsidiaries in connection with any annual, interim or special audit of
the books of the Borrower or any of its Subsidiaries.
(g) Reports.
(i) promptly upon transmission thereof, copies of all effective
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent), and all reports
on Forms 10-K, 10-Q and 8-K (or their equivalents) which the Borrower
shall file with the Securities and Exchange Commission; and
(ii) promptly upon the Lender's written request, (a) copies of any
other filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies
of all financial statements, proxy statements, notices and reports as the
Borrower or any of its Subsidiaries shall send to its shareholders
generally; and (b) all reports and written information to and from the
United Stated Environmental Protection Agency, or any state or local
agency responsible for environmental matters, or any successor agencies
or authorities concerning environmental matters.
(h) Notices. Upon an Executive Officer of a Credit Party obtaining
knowledge thereof, such Credit Party will give written notice to the Lender
immediately of (a) the occurrence of a Default or Event of Default, specifying
the nature and existence thereof and what action the Borrower proposes to take
with respect thereto, and (b) the occurrence of any of the following with
respect to the Borrower or any of its Subsidiaries (i) the pendency or
commencement of any litigation, arbitral or governmental proceeding against the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, or (ii) the institution of any proceedings against the
Borrower or any of its Subsidiaries with respect to, or the receipt of notice by
such Person of potential liability or responsibility for violation, or alleged
violation of any federal, state or local law, rule or regulation, including but
not limited to, Environmental Laws, the violation of which could reasonably be
expected to have a Material Adverse Effect.
(i) ERISA. Upon any of the Credit Parties obtaining knowledge thereof,
Borrower will give written notice to the Lender promptly (and in any event
within ten (10) Business Days) of: (i) any event or condition, including, but
not limited to, any Reportable Event, that constitutes, or might reasonably lead
to, a Termination Event; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Borrower or any of its ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or insolvent
(both within the meaning of Title IV of ERISA); (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all amounts
which the Credit Party or ERISA Affiliates is required to contribute to each
Single Employer Plan pursuant to its terms and as required to
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48
meet the minimum funding standard set forth in ERISA and the Code with respect
thereto which failure could result in the imposition of a lien or could result
in a reporting obligation to the PBGC or a participant with respect to such
failure; and (iv) any change in the funding status of any Single Employer Plan
that could have a Material Adverse Effect; together, with a description of any
such event or condition or a copy of any such notice and a statement by the
principal financial officer of the Borrower briefly setting forth the details
regarding such event, condition, or notice, and the action, if any, which has
been or is being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, the Borrower shall furnish the Lender
with such additional information concerning any Plan of a Credit Party or ERISA
Affiliate as may be reasonably requested, including, but not limited to, copies
of each annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code, respectively, for each
"plan year" (within the meaning of Section 3(39) of ERISA).
(j) Environmental. Each Credit Party will conduct and complete all
investigations, studies, sampling and testing and all remedial, removal, and
other actions necessary to address all Hazardous Materials on, from, or
affecting any real property owned or leased by a Credit Party to the extent
necessary to be in compliance with all Environmental Laws and all other
applicable federal, state, and local laws, regulations, rules and policies and
with the orders and directives of all Governmental Authorities exercising
jurisdiction over such real property to the extent any failure could reasonably
be expected to have a Material Adverse Effect.
(k) Insurance Subsidiaries.
(i) The ratio of Net Premiums Written to Surplus as regards to
Policyholders shall not exceed 3.00:1.00. (Measured annually for each
individual Insurance Subsidiary).
(ii) The Borrower shall deliver to the Lender the following
financial statements of each Insurance Subsidiary: (1) its annual
statutory financial statements, in the same form as provided to the State
of Florida Department of Insurance, the earlier of (a) ten (10) days
after completion or (b) within one hundred thirty (130) days after the
end of each fiscal year and (2) its quarterly financial statement in the
same form as provided to the State of Florida Department of Insurance the
earlier of ten (10) days from completion or within sixty (60) days after
the end of each quarter. In addition to the annual and quarterly
statements, the Borrower shall deliver to the Lender a copy of the IRIS
ratios and Risk Based Capital material as submitted by each Insurance
Subsidiary to the NAIC and the State of Florida Department of Insurance
promptly upon the submission thereof.
(iii) The Insurance Subsidiaries shall maintain Total Adjusted
Capital, as defined by the State of Florida Department of Insurance, at
no less than 200% of the
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49
Authorized Control Level Risked Based Capital
(RBC) for the life of the loan (measured annually).
(iv) The Insurance Subsidiaries, on a combined basis, shall maintain
a minimum surplus as regards to policyholders as follows: (measured
annually)
Beginning with the fiscal year ending December 31, 1997, a minimum
surplus of $35,000,000 shall be required. Annually thereafter the
minimum surplus shall increase, but not be reduced, by one-half of
the net income of such Insurance Subsidiaries as reported on the
Consolidated Statutory Statement. The above figure shall be adjusted
to reflect any changes promulgated by the State of Florida Department
of Insurance in the manner by which Surplus as regards to
policyholders is to be calculated.
(v) Insurance Subsidiaries shall only transact business with new
reinsurers who maintain an A.M. Best rating of B+ or better without prior
written consent of Lender. Notwithstanding anything to the contrary,
Lloyds of London shall be excluded from the aforementioned clause (it
being the intent of the parties that insurance Subsidiaries shall be
entitled to transact business with Lloyds of London regardless of Lloyds
of London's A.M. Best rating or lack thereof).
(vi) Any capitalized terms in this Section 7.1(k) which are not
otherwise defined in this Credit Agreement, shall be defined in
accordance with the policies of the State of Florida Department of
Insurance.
(l) Other Information. With reasonable promptness upon any such request,
such other information regarding the business, properties or financial condition
of the Credit Parties as the Lender may reasonably request.
7.2 FINANCIAL COVENANTS.
(a) Senior Debt to Capital Ratio. The Senior Debt to Capital Ratio, as of
the end of each fiscal quarter, measured quarterly on a consolidated basis,
shall not be greater than thirty percent (30%).
(b) Debt Service Coverage Ratio. The Debt Service Coverage Ratio, as of
the end of each fiscal quarter of the Borrower shall not be less than the ratio
of 2.00:1.00, measured on a cumulative quarter basis as provided in the table
below, beginning with the Borrower's consolidated financial statement for the
fiscal quarter ending March 31, 1998 through the quarter ending September 30,
1998. Beginning with the Borrower's fiscal quarter ending December 31, 1998 and
each fiscal quarter ending thereafter, the Debt Service Coverage Ratio will be
measured quarterly for the four fiscal quarter period then ended, based upon the
Borrower's consolidated financial statement for such applicable period.
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50
===========================================================================================================
3 months ending 6 months ending 9 months ending
March 31, 1998 June 30, 1998 September 30, 1998
-----------------------------------------------------------------------------------------------------------
EBITDA Actual EBITDA for the 3 Actual EBITDA for the 6 Actual EBITDA for the 9
months months months
-----------------------------------------------------------------------------------------------------------
Capital Expenditures Actual Capital Actual Capital Actual Capital
Expenditures for the 3 Expenditures for the 6 Expenditures for the 9
months months months
-----------------------------------------------------------------------------------------------------------
Interest Actual Interest for the 3 Actual Interest for the 6 Actual Interest for the 9
months months months
-----------------------------------------------------------------------------------------------------------
Principal $1,000,000 + (d)* $2,000,000 + (d)* $3,000,000 + (d)*
===========================================================================================================
(d)* equals any debt service associated with the Indebtedness of the Borrower
or any if its Subsidiaries.
7.3 BOOKS AND RECORDS. Each of the Credit Parties will keep complete and
accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.4 COMPLIANCE WITH LAW. Each of the Credit Parties will comply with all
laws, rules, regulations and orders, and all applicable restrictions imposed by
all Governmental Authorities, applicable to it and its property (including,
without limitation, Environmental Laws), the failure with which to comply could
reasonably be expected to have a Material Adverse Effect.
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS. Each of the Credit Parties
will pay, settle or discharge (a) all taxes, assessments and governmental
charges or levies imposed upon it, or upon its income or profits, or upon any of
its properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) except as prohibited
hereunder, all of its other Indebtedness as it shall become due; provided,
however, that a Credit Party shall not be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings and as to which adequate reserves therefor have
been established in accordance with GAAP, unless the failure to make any such
payment (i) could give rise to an immediate right to foreclose on a Lien
securing such amounts or (ii) could reasonably be expected to have a Material
Adverse Effect.
7.6 INSURANCE. Each of the Credit Parties will at all times maintain in
full force and effect insurance (including, but not limited to, worker's
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
normal industry practice. All liability policies shall have the Lender as an
additional insured and all casualty policies shall have the Lender as loss
payee.
In the event there occurs any material loss, damage to or destruction of
the Collateral of any Credit Party or any part thereof, such Credit Party shall
promptly give written notice
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51
thereof to the Lender generally describing the nature and extent of such damage
or destruction. Subsequent to any loss, damage to or destruction of the
Collateral of any Credit Party or any part thereof, such Credit Party, whether
or not the insurance proceeds, if any, received on account of such damage or
destruction shall be sufficient for that purpose, at such Credit Party's cost
and expense, will promptly repair or replace the Collateral of such Credit Party
so lost, damaged or destroyed; provided, however, that such Credit Party need
not repair or replace the Collateral of such Credit Party so lost, damaged or
destroyed to the extent the failure to make such repair or replacement (a) is
desirable to the proper conduct of the business of such Credit Party in the
ordinary course and otherwise is in the best interest of such Credit Party and
(b) would not materially impair the rights and benefits of the Lender under this
Credit Agreement or any other Credit Document. In the event a Credit Party shall
receive any insurance proceeds, as a result of any loss, damage or destruction,
in a net amount in excess of $1,000,000, such Credit Party will immediately pay
over such proceeds to the Lender as cash collateral for the Credit Party
Obligations. The Lender agrees to release such insurance proceeds to such Credit
Party for replacement or restoration of the portion of the Collateral of such
Credit Party lost, damaged or destroyed if (A) within fifteen (15) days from the
date the Lender receives such insurance proceeds, the Lender has received
written application for such release from such Credit Party together with
evidence reasonably satisfactory to it that the Collateral lost, damaged or
destroyed has been or will be replaced or restored to its condition (or by
Collateral having a value at least equal to the condition of the asset subject
to the loss, damage or destruction) immediately prior to the loss, destruction
or other event giving rise to the payment of such insurance proceeds and (B) on
the date of such release no Default or Event of Default exists. If the
conditions in the preceding sentence are not met, the Lender shall, on the first
Business Day subsequent to the date thirty (30) days after it received such
insurance proceeds, apply such insurance proceeds as a mandatory prepayment of
the Credit Party Obligations for application in accordance with the terms of
Section 3.3(b). All insurance proceeds shall be subject to the security interest
of the Lender under the Collateral Documents.
The insurance coverage of the Borrower and its Subsidiaries as of the
date hereof is outlined as to carrier, policy number, expiration date, type and
amount on SCHEDULE 7.6.
7.7 MAINTENANCE OF PROPERTY. Each of the Credit Parties will maintain and
preserve its properties and equipment in good repair, working order and
condition, normal wear and tear excepted (subject to damage by casualties), and
will make, or cause to be made, in such properties and equipment from time to
time all repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
7.8 PERFORMANCE OF OBLIGATIONS. Each of the Credit Parties will perform
in all material respects all of its obligations under the terms of all
agreements, indentures, mortgages, security agreements, pledge agreements or
other debt instruments to which it is a party or by which it is bound and of
which failure to perform could reasonably be expected to have a Material Adverse
Effect.
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52
7.9 COLLATERAL. If, subsequent to the Closing Date, a Credit Party shall
acquire any intellectual property, securities, instruments, chattel paper or
other tangible or intangible property required to be delivered to the Lender as
Collateral hereunder or under any of the Collateral Documents, the Borrower
shall immediately notify the Lender of same. Each Credit Party shall take such
action (including, but not limited to, the actions set forth in Section 5.1(h)),
as reasonably requested by the Lender and at its own expense, to ensure that the
Lender has a first priority perfected Lien in all tangible and intangible assets
of the Credit Parties (whether now owned or hereafter acquired, but excluding
any interest in real property), subject only to Permitted Liens. Each Credit
Party shall adhere to the covenants regarding the location of tangible and
intangible assets as set forth in the Security Agreements.
7.10 USE OF PROCEEDS. The Credit Parties will use the proceeds of the
Revolving Loan solely (a) to refinance the Existing Facility, (b) to pay related
fees and expenses in connection with this Credit Agreement and the Credit
Documents, and (c) to provide general working capital. None of the proceeds of
the Loan will be used for the purpose of purchasing or carrying any "margin
stock" as defined in Regulation U or Regulation G, or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry "margin stock" or any "margin security" or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of
Regulation U, Regulation X, Regulation G or Regulation T.
7.11 AUDITS/INSPECTIONS. Upon reasonable prior notice and during normal
business hours and in manner that will not unreasonably interfere with its
business operations, each Credit Party will permit representatives appointed by
the Lender, including, without limitation, independent accountants, agents,
attorneys and appraisers to visit and inspect such Credit Party's property,
including its books and records, its accounts receivable and inventory, its
facilities and its other business assets, and to make photocopies or photographs
thereof and to write down and record any information such representative obtains
and shall permit the Lender or its representatives to investigate and verify the
accuracy of information provided to the Lender, including, without limitation,
the performance of collateral valuation reviews from time to time, and to
discuss all such matters with the officers, employees and representatives of the
Credit Parties.
7.12 ADDITIONAL CREDIT PARTIES. At the time any Person becomes a
Subsidiary of a Credit Party, the Borrower shall so notify the Lender and
promptly thereafter (but in any event within thirty (30) days after the date
thereof) shall cause such Person (other than insurance Subsidiaries) to (a)
execute a Joinder Agreement in substantially the same form as EXHIBIT 7.12, (b)
cause all of the capital stock of such Person owned by the Borrower or any other
Credit Party to be delivered to the Lender (together with undated stock powers
signed in blank) and pledged to the Lender pursuant to an appropriate pledge
agreement in substantially the form of the Pledge Agreement and otherwise in a
form reasonably acceptable to the Lender, (c) pledge all of its assets to the
Lender pursuant to a security agreement in substantially the form of the
Security Agreement and otherwise in a form reasonably acceptable to the Lender,
(d) if such Person has any Subsidiaries, (i) deliver all of the capital stock of
such Subsidiaries owned by such Person (together with undated stock powers
signed
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53
in blank) to the Lender and (ii) execute a pledge agreement in substantially the
form of the Pledge Agreement and otherwise in a form reasonably acceptable to
the Lender, and (e) deliver such other documentation as the Lender may
reasonably request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, certified resolutions and
other organizational and authorizing documents of such Person and favorable
opinion of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above), all in form, content and scope reasonably satisfactory to
the Lender.
7.13 MAIN OPERATING BANK ACCOUNTS. No later than sixty (60) days after
the Closing Date Borrower shall establish and thereafter maintain all of
Borrower's main operating bank accounts with the Lender; provided, however, once
such accounts are established, Lender shall service such accounts in a
commercially acceptable fashion.
7.14 SIGNIFICANT CHANGES IN OPERATIONS. The Borrower shall within ten
(10) days notify Lender of any significant changes in operations of Borrower or
its Subsidiaries, including but not limited to, changes in management and
changes in reinsurance programs.
7.15 ACTIVATION OF DISCONTINUED OPERATIONS. The Borrower shall within ten
(10) days of any Discontinued Operations again conducting business activities,
other than those activities mentioned in Section 6.26 herein, cause any
Discontinued Operations to execute a Joinder Agreement as provided in Section
7.12 and become a Guarantor hereof.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loan and LOC Obligations, together with
interest, fees and other obligations hereunder, have been paid in full and the
Commitment and Letters of Credit hereunder shall have terminated:
8.1 INDEBTEDNESS. No Credit Party will, nor will it permit any of its
Subsidiaries (other than Insurance Subsidiaries) to, contract, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness in respect of current accounts payable and accrued
expenses incurred in the ordinary course of business including, to the
extent not current, accounts payable and accrued expenses that are
subject to bona fide dispute;
(c) Indebtedness owing by one Credit Party to another Credit Party;
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54
(d) purchase money Indebtedness (including Capital Leases) incurred
by the Borrower or any of its Subsidiaries to finance the purchase of
equipment, real property (and improvements thereon) or fixed assets;
provided that (i) the total of all such Indebtedness for all such Persons
taken together shall not exceed an aggregate principal amount of $500,000
per calendar year (excluding any such Indebtedness referred to in
subsections (a), (b) and (c) above); (ii) such Indebtedness when incurred
shall not exceed the purchase price of the asset(s) financed; and (iii)
no such Indebtedness shall be refinanced for a principal amount in excess
of the principal balance outstanding thereon at the time of such
refinancing; and
8.2 LIENS. No Credit Party will, nor will it permit its Subsidiaries to
contract, create, incur, assume or permit to exist any Lien with respect to any
of its property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired except for Permitted Liens.
8.3 NATURE OF BUSINESS. No Credit Party will alter in any material
respect the character of its business from that conducted as of the Closing Date
or engage in any business other than the business conducted as of the Closing
Date.
8.4 CONSOLIDATION AND MERGER. No Credit Party will acquire all or
substantially all of the assets or capital stock of another Person, or merge or
consolidate with any other Person, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution); provided that notwithstanding the
foregoing provisions of this Section 8.4, (x) the Borrower may enter into
acquisitions, so long as (a) no Event of Default has occurred or is continuing
or would result as a result of the acquisition (for four quarters, historical
and projected), (b) the acquisitions are within Borrower's current line of
business, (c) the aggregate acquisitions plus the aggregate of any loans to
agents and suppliers permitted in Section 8.7 shall not exceed $2,000,000 in
capital outlay annually, unless approved in writing by the Lender (which shall
not be unreasonably withheld), and (d) the Borrower shall immediately upon the
consummation of such acquisition provide Lender with audited financial
statements of the acquired entity, if then available; (y) Subsidiaries of the
Borrower may merge or consolidate with the Borrower or other Subsidiaries of the
Borrower and (z) any Subsidiary may dissolve or liquidate so long as the assets
of such Subsidiary at the time of such dissolution or liquidation are
transferred to such Subsidiary's shareholder and such shareholder assumes all of
the liabilities of such Subsidiary at the time of such dissolution or
liquidation. Notwithstanding anything to the contrary, the $2,000,000 referenced
in this Section 8.4 and in Section 8.7 below is an aggregate amount pertaining
to both Section 8.4 and Section 8.7 and nothing shall be deemed to permit
$4,000,000 in annual capital outlay.
8.5 SALE OR LEASE OF ASSETS. No Credit Party will convey, sell, lease,
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or substantially all of its assets other than the sale, lease,
transfer or other disposal by a Credit Party (other than the Borrower) of any or
all of its assets to the Borrower or another Credit Party.
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55
Upon a sale of assets permitted by this Section 8.5, the Lender shall
promptly deliver to the Borrower, upon the Borrower's request and at the
Borrower's expense, such documentation as is reasonably necessary to evidence
the release of the Lender's security interest in such assets, including, without
limitation, amendments or terminations of UCC financing statements.
8.6 SALE LEASEBACKS. No Credit Party will directly or indirectly become
liable as lessee or as guarantor or other surety with respect to any lease of
any property (whether real or personal or mixed), whether now owned or hereafter
acquired, (a) which such Credit Party has sold or transferred or is to sell or
transfer to any other Person other than a Credit Party or (b) which such Credit
Party intends to use for substantially the same purpose as any other property
which has been sold or is to be sold or transferred by such Credit Party to any
Person in connection with such lease.
8.7 ADVANCES, INVESTMENTS AND LOAN. No Credit Party will make any
Investments, except for Permitted Investments. No Credit Party will make any
advances or loans, except loans to agents (excluding insurance Subsidiaries,
officers and employees) and suppliers of which the aggregate loans plus the
aggregate of any acquisitions permitted in Section 8.4 shall not exceed
$2,000,000 in capital outlay annually.
8.8 DIVIDENDS. No Credit Party will directly or indirectly, (a) declare
or pay any dividends or make any other distribution upon any shares of its
common stock or (b) purchase, redeem or otherwise acquire or retire or make any
provisions for redemption, acquisition or retirement of any shares of its common
stock of any class or any warrants or options to purchase any such shares;
provided that any Subsidiary of the Borrower may pay dividends to the Borrower.
8.9 TRANSACTIONS WITH AFFILIATES. Except for transactions with
Subsidiaries (other than Insurance Subsidiaries), no Credit Party will enter
into any transactions or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder, Subsidiary or
Affiliate other than on terms and conditions substantially as favorable as would
obtainable in a comparable arm's-length transaction with a Person other than an
officer, director, shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS. No Credit Party will (a)
change its fiscal year or (b) change its articles or certificate of
incorporation or its bylaws if such change could reasonably be expected to have
a Material Adverse Effect.
8.11 LIMITATIONS. No Credit Party will directly or indirectly, create or
otherwise cause, incur, assume, suffer or permit to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any such
Person to (a) pay dividends or make any other distribution on any of such
Person's capital stock, (b) pay any Indebtedness owed to the Borrower or any
other Credit Party, (c) make loans or advances to any other Credit Party or (d)
transfer any of its property to any other Credit Party, except for encumbrances
or restrictions existing under or by reason of (i) customary non-assignment or
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56
net worth provisions in any lease governing a leasehold interest, (ii) any
agreement or other instrument of a Person existing at the time it becomes a
Subsidiary of the Borrower; provided that such encumbrance or restriction is not
applicable to any other Person, or any property of any other Person, other than
such Person becoming a Subsidiary of the Borrower and was not entered into in
contemplation of such Person becoming a Subsidiary of the Borrower, and (iii)
this Credit Agreement and the other Credit Documents.
8.12 CANCELLATION OF INDEBTEDNESS. Borrower shall not and shall not
permit any Subsidiary of Borrower to cancel any claim or debt owing to it,
except for reasonable consideration or in the ordinary course of business.
8.13 PREFERRED STOCK. No Credit Party shall issue any additional
preferred stock not issued as of the date hereof.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT. An Event of Default shall exist upon the
occurrence of any of the following specified events (each an "EVENT OF
DEFAULT"):
(a) Payment. Any Credit Party shall default in the payment (i) when due
of any principal of any of the Loan or any reimbursement obligation arising from
drawings under Letters of Credit or (ii) within three (3) days of when due of
any interest on the Loan or any fees or other amounts owing hereunder, under any
of the other Credit Documents or in connection therewith.
(b) Representations. Any written representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was made or deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the default performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.5, 7.6, 7.8, 7.9,
7.10, 7.11, 7.12, 7.13, 7.14 or 8.1 through 8.15 inclusive; or
(ii) default in the due performance or observance by it of any term,
covenant or agreement contained in Section 7.1 and such default shall
continue unremedied for a period of five (5) Business Days after the
earlier of an Executive Officer of a Credit Party becoming aware of such
default or notice thereof given by the Lender; or
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(iii) default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in subsections (a),
(b) or (c)(i) or (ii) of this Section 9.1) contained in this Credit
Agreement and such default shall continue unremedied for a period of at
least thirty (30) days after the earlier of an Executive Officer of a
Credit Party becoming aware of such default or notice thereof given by
the Lender.
(d) Other Credit Documents. (i) Any Credit Party shall default in the due
performance or observance of any term, covenant or agreement in any of the other
Credit Documents and such default shall continue unremedied for a period of at
least thirty (30) days after the earlier of an Executive Officer of a Credit
Party becoming aware of such default or notice thereof given by the Lender, or
(ii) any Credit Document shall fail to be in full force and effect or any Credit
Party shall so assert or any Credit Document shall fail to give the Lender the
security interests, liens, rights, powers and privileges purported to be created
thereby.
(e) Guaranties. The guaranty given by the Credit Parties hereunder or by
any Additional Credit Party hereafter or any provision thereof shall cease to be
in full force and effect, or any guarantor thereunder or any Person acting by or
on behalf of such guarantor shall deny or disaffirm such Guarantor's obligations
under such guaranty.
(f) Bankruptcy, etc. As used in this Section 9.1(f), "MATERIAL
SUBSIDIARY" means any Subsidiary of the Borrower which (a) has total assets
greater than or equal to 5% of total assets of the Borrower and its Subsidiaries
determined on a consolidated basis or (b) has net earnings greater than or equal
to 10% of the net earnings of the Borrower and its Subsidiaries determined on a
consolidated basis (or any combination of Subsidiaries, which in the aggregate,
for the term of this Agreement, have total assets greater than or equal to 5% of
total assets of the Borrower and its Subsidiaries determined on a consolidated
basis or have net earnings greater than or equal to 10% of the net earnings of
the Borrower and its Subsidiaries determined on a consolidated basis). The
occurrence of any of the following with respect to the Borrower or any Material
Subsidiary (i) a court or governmental agency having jurisdiction in the
premises shall enter a decree or order for relief in respect of the Borrower or
any Material Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Borrower or any Material Subsidiary or for any substantial part
of its property or ordering or winding up or liquidation of its affairs; or (ii)
an involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect is commenced against the Borrower or any Material
Subsidiary and such petition remains unstayed and in effect for a period of
sixty (60) consecutive days; or (iii) the Borrower or any Material Subsidiary
shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person or any substantial part
of its property or make any general assignment for the benefit of creditors; or
(iv) the Borrower or any Material
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Subsidiary shall admit in writing its inability to pay its debts generally as
they become due or any action shall be taken by such Person in furtherance of
any of the aforesaid purposes.
(g) Defaults under Other Agreements. With respect to any Indebtedness
(other than Indebtedness outstanding under this Credit Agreement) of the
Borrower or any of its Subsidiaries in an aggregate principal amount in excess
of $500,000, (i) a Credit Party shall (A) default in any payment (beyond the
applicable grace period with respect thereto, if any) with respect to any such
Indebtedness, or (B) default (after giving effect to any applicable grace
period) in the observance or performance relating to such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event or condition shall occur or condition exist, the
effect of which default or other event or condition is to cause, or permit, the
holder or holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause (determined without regard to whether any notice or lapse of
time is required) any such Indebtedness to become due prior to its stated
maturity; or (ii) any such Indebtedness shall be declared due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment
prior to the stated maturity thereof; or (iii) any such Indebtedness shall
mature and remain unpaid.
(h) Judgments. One or more judgments, orders, or decrees shall be entered
against any one or more of the Credit Parties involving a liability of
$1,000,000 or more, in the aggregate, (to the extent not paid or covered by
insurance provided by a carrier who has acknowledged coverage) and such
judgments, orders or decrees (i) are the subject of any enforcement proceeding
commenced by any creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last day on which
such judgment, order or decree becomes final and appealable or (B) sixty (60)
days.
(i) ERISA. The occurrence of any of the following event or conditions
which event or conditions could reasonably be expected to have a Material
Adverse Effect: (A) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, shall exist with respect to any Plan of a Credit Party or ERISA
Affiliate, or any lien shall arise on the assets of the Credit Party or any
ERISA Affiliate in favor of the PBGC or a Plan of a Credit Party or ERISA
Affiliate; (B) a Termination Event shall occur with respect to a Single Employer
Plan, which is, in the reasonable opinion of the Lender, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (C) a Termination
Event shall occur with respect to a Multiemployer Plan or Multiple Employer
Plan, which is, in the reasonable opinion of the Lender, likely to result in (i)
the termination of such Plan for purposes of Title IV of ERISA, or (ii) the
Credit Party or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency (within the meaning of Section 4245 of ERISA) of such
Plan; or (d) any prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which may subject the Credit Party to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
agreement or other instrument pursuant to which the Credit Party has agreed or
is required to indemnify any person against any such liability.
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(j) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES. Upon the occurrence of an Event of Default,
and at any time thereafter unless and until such Event of Default has been
waived in writing by the Lender, the Lender shall, by written notice to the
Borrower, take any of the following actions without prejudice to the rights of
the Lender to enforce its claims against the Credit Parties, except as otherwise
specifically provided for herein:
(a) Termination of Commitment. Declare the Commitment terminated
whereupon the Commitment shall be immediately terminated.
(b) Acceleration of Loan. Declare the unpaid principal of and any accrued
interest in respect of the Loan, any reimbursement obligations arising from
drawings under Letters of Credit and any and all other indebtedness or
obligations of any and every kind owing by a Credit Party to the Lender
hereunder to be due whereupon the same shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Credit Parties.
(c) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents, including, without limitation,
all rights and remedies existing under the Collateral Documents, all rights and
remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in
Section 9.1(f) shall occur, then the Commitment shall automatically terminate
and the Loan, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lender hereunder shall immediately become due and
payable without the giving of any notice or other action by the Lender, which
notice or other action is expressly waived by the Credit Parties.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT. Notwithstanding any
other provisions of this Credit Agreement, after the occurrence and during the
continuance of an Event of Default, all amounts collected or received by the
Lender on account of amounts outstanding under any of the Credit Documents or in
respect of the Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees
actually incurred) of the Lender in connection with enforcing the rights
of the Lender under the Credit Documents and any protective advances made
by the Lender with respect to the Collateral under or pursuant to the
terms of the Collateral Documents;
SECOND, to payment of any fees owed to the Lender;
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THIRD, to the payment of all accrued interest payable to the Lender
hereunder;
FOURTH, to the payment of the outstanding principal amount of the
Loan and to the payment or cash collateralization of the outstanding LOC
Obligations;
FIFTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in
the numerical order provided until exhausted prior to application to the next
succeeding category.
SECTION 10
MISCELLANEOUS
10.1 NOTICES. Except as otherwise expressly provided herein, all notices
and other communications shall have been duly given and shall be effective only
when delivered to the respective parties at the address or telecopy numbers set
forth on SCHEDULE 10.1, or at such other address as such party may specify by
written notice to the other parties hereto.
10.2 RIGHT OF SET-OFF. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default
and the commencement of remedies described in Section 9.2, the Lender is
authorized at any time and from time to time, without presentment, demand,
protest or other notice of any kind (all of which rights being hereby expressly
waived), to set-off and to appropriate and apply any and all deposits (general
or special) and any other indebtedness at any time held or owing by the Lender
(including, without limitation, branches, agencies or Affiliates of the Lender
wherever located) to or for the credit or the account of any Credit Party
against obligations and liabilities of such Credit Party to the Lender
hereunder, under the Note, the other Credit Documents, irrespective of whether
the Lender shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured, and any
such set-off shall be deemed to have been made immediately upon the occurrence
of an Event of Default even though such charge is made or entered on the books
of the Lender subsequent thereto. The Credit Parties hereby agree that any
Person purchasing a participation in the Loan and Commitment hereunder pursuant
to Section 10.3(c) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder.
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10.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and permitted
assigns of the parties hereto; provided that none of the Credit Parties may
assign and transfer any of its interests (except as permitted by Section 8.5)
without the prior written consent of the Lender; and provided further that the
rights of the Lender to transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set forth below in subsections
(b) and (c) of this Section 10.3. Notwithstanding the above (including anything
set forth in subsections (b) and (c) of this Section 10.3), nothing herein shall
restrict, prevent or prohibit the Lender from (A) pledging its Loan hereunder to
a Federal Reserve Bank in support of borrowings made by the Lender from such
Federal Reserve Bank, or (B) granting assignments or participations in the
Lender's Loan and/or Commitment hereunder to its parent company and/or to any
Affiliate of the Lender.
(b) Assignments. The Lender may, with the prior written consent of the
Borrower (provided that no consent of the Borrower shall be required during the
existence and continuation of an Event of Default), which consent shall not be
unreasonably withheld or delayed, assign all of its rights and obligations
hereunder pursuant to an assignment agreement substantially in the form of
EXHIBIT 10.3 to one or more Eligible Assignees. Along such lines the Borrower
agrees that upon notice of any such assignment and surrender of the appropriate
Note, it will promptly provide to the Lender and to the assignee separate
promissory notes in the amount of their respective interests substantially in
the form of the original Note (but with notation thereon that it is given in
substitution for and replacement of the original Note or any replacement notes
thereof).
(c) Participations. The Lender may sell, transfer, grant or assign
participations in all or any part of the Lender's interests and obligations
hereunder to any Person which qualifies as an Eligible Assignee.
10.4 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of
the Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Borrower or any
Credit Party and the Lender shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Lender would otherwise have. No notice to or demand
on any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Lender to any other or further action in any
circumstances without notice or demand.
10.5 PAYMENT OF EXPENSES; INDEMNIFICATION. The Credit Parties agree to:
(a) pay all reasonable out-of-pocket costs and expenses of (i) the Lender in
connection with (A) the negotiation, preparation, execution and delivery and
administration, which does not include normal expenses during non-default
periods, of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein as provided in the
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Commitment Letter dated November 5, 1997, including but not limited to legal
fees (of which the legal fees of the Lender's counsel shall be capped at
$17,500.00), State of Florida sales tax, intangible taxes, documentary stamp
taxes, and all recording costs, and (B) any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement and (ii) the Lender in connection with (A) enforcement of the Credit
Documents and the documents and instruments referred to therein, including,
without limitation, in connection with any such enforcement, the reasonable and
actual fees and disbursements of counsel for the Lender, and (B) any bankruptcy
or insolvency proceeding of a Credit Party of any of its Subsidiaries; and (b)
indemnify the Lender, its officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not the Lender is a party thereto)
related to (i) the entering into and/or performance of any Credit Document or
the use of proceeds of any Loan (including other extensions of credit) hereunder
or the consummation of any other transactions contemplated in any Credit
Document, including, without limitation, the reasonable fees and disbursements
of counsel actually incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of gross negligence
or willful misconduct on the part of the Person to be indemnified), (ii) any
Environmental Claim and (iii) any claims for Non-Excluded Taxes or Florida
Taxes.
10.6 AMENDMENTS, WAIVERS AND CONSENTS. Neither this Credit Agreement nor
any other Credit Document nor any of the terms hereof or thereof may be amended,
changed, waived, discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing and signed by the Lender and the then
Credit Parties.
10.7 COUNTERPARTS. This Credit Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Credit Agreement to produce or account for
more than one such counterpart.
10.8 HEADINGS. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Credit Agreement.
10.9 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES. All
indemnities set forth herein shall survive the repayment of the Loan, the LOC
Obligations, and other obligations and the termination of the Commitment
hereunder. All representations and warranties made herein shall survive the
execution and delivery of this Credit Agreement, the making of the Loan and the
issuance of the Letters of Credit.
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10.10 GOVERNING LAW; JURISDICTION.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
Any legal action or proceeding with respect to this Agreement or any other
Credit Document may be brought in the courts of the State of Florida (including
the Hillsborough County, Florida Circuit Court) or of the United States for the
Middle District of Florida, Tampa division and, by execution and delivery of
this Credit Agreement, each Credit Party hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of such courts. Each Credit Party further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
in accordance with the laws of the State of Florida, by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the address
for notices pursuant to Section 10.1. Nothing herein shall affect the right of
the Lender to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against a Credit Party in any other
jurisdiction. Each Credit Party agrees that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law; provided that
nothing in this Section 10.10(a) is intended to impair a Credit Party's right
under applicable law to appeal or seek a stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in subsection (a) hereof and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
10.11 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
10.12 TIME. All references to time herein shall be references to Eastern
Standard Time or Eastern Daylight Time, as the case may be, unless specified
otherwise.
10.13 SEVERABILITY. If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
10.14 ENTIRETY. This Credit Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or
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correspondence relating to the Credit Documents or the transactions contemplated
herein and therein.
10.15 BINDING EFFECT. This Credit Agreement shall become effective at
such time when all of the conditions set forth in Section 5.1 have been
satisfied or waived by the Lender and it shall have been executed by the
Borrower, the Guarantors and the Lender, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of the Borrower, the Guarantors,
the Lender and their respective successors and permitted assigns.
10.16 CONFIDENTIALITY. The Lender shall utilize all non-public
information regarding the Borrower or any of its Subsidiaries obtained pursuant
to the requirements of any Credit Document in accordance with the Lender's
customary procedure for handling confidential information of this nature and in
accordance with safe and sound banking practices but in any event may make
disclosure: (a) to any of its affiliates (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (b) as
reasonably required by any bona fide participant or other transferee in
connection with the contemplated transfer of the Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; and (d) to the Lender's independent auditors and other
professional advisors (provided they shall be notified of the confidential
nature of the information).
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
SUMMIT HOLDING SOUTHEAST, INC.
By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
GUARANTORS:
SUMMIT HOLDING CORPORATION
By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
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SUMMIT CONSULTING, INC.
By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
SUMMIT HEALTHCARE HOLDINGS,
INC.
By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
SUMMIT LOSS CONTROL SERVICES, INC.
By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
SUMMIT CLAIMS MANAGEMENT, INC.
By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
COMMERCIAL INSURANCE OF
CENTRAL FLORIDA, INC.
By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
HERITAGE/SUMMIT HEALTH CARE
OF FLORIDA, INC.
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By:/s/ Xxxxxxx X. Xxxx
------------------------------------------
Xxxxxxx X. Xxxx
President
SUMMIT CONSULTING, INC. OF
LOUISIANA
By:/s/ Xxxxx X. Childs, Jr.
------------------------------------------
Name: Xxxxx X. Childs, Jr.
Title: President
LENDER:
SUNTRUST BANK, TAMPA BAY
By:/s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx
Vice President
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