Exhibit 10.13
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SHORT TERM CREDIT AGREEMENT
between
XXXXXX SUPPLY, INC.
as Borrower,
and
BANK OF AMERICA, N.A. ,
as Lender
September 13, 2000
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions..........................................................................................1
1.2. Rules of Interpretation.............................................................................11
ARTICLE II
The Credit Facilities
2.1. Loans...............................................................................................13
2.2. Use of Proceeds.....................................................................................14
2.3. Note................................................................................................14
ARTICLE III
Eurodollar Funding, Fees, and Payment Conventions
3.1. Interest Rate Options...............................................................................14
3.2. Conversions and Elections of Subsequent Interest Periods............................................15
3.3. Payment of Interest.................................................................................15
3.4. Prepayments of Eurodollar Rate Loans................................................................16
3.5. Manner of Payment...................................................................................16
3.6. Facility Fee........................................................................................16
3.7. Computation of Rates and Fees.......................................................................17
ARTICLE IV
Guaranty
4.1. Guaranty............................................................................................17
4.2 Benefits to Guarantors..............................................................................17
ARTICLE V
Change in Circumstances
-----------------------
5.1. Increased Cost and Reduced Return...................................................................17
5.2. Limitation on Types of Loans........................................................................19
5.3. Illegality..........................................................................................19
5.4. Treatment of Affected Loans.........................................................................19
5.5. Compensation........................................................................................20
5.6. Taxes...............................................................................................20
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ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance.......................................................................21
6.2. Conditions of Loans and Letter of Credit............................................................23
ARTICLE VII
Incorporation of Representations and Warranties
7.1. Incorporated Representations and Warranties.........................................................25
ARTICLE VIII
Incorporation of Affirmative Covenants
8.1. Incorporated Covenants..............................................................................25
8.15. Additional Guarantors...............................................................................26
ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default...................................................................................27
9.2. Lender to Act.......................................................................................30
9.3. Cumulative Rights...................................................................................30
9.4. No Waiver...........................................................................................30
9.5. Allocation of Proceeds..............................................................................30
ARTICLE X
Miscellaneous
10.1. Participations......................................................................................31
10.2. Notices.............................................................................................31
10.3. Right of Set-off; Adjustments.......................................................................33
10.4. Survival............................................................................................33
10.5. Expenses............................................................................................33
10.6. Amendments and Waivers..............................................................................33
10.7. Counterparts; Facsimile Signatures..................................................................33
10.8. Termination.........................................................................................34
10.9. Indemnification; Limitation of Liability............................................................34
10.10. Severability........................................................................................35
10.11. Entire Agreement....................................................................................35
10.12. Agreement Controls..................................................................................35
10.13. Usury Savings Clause................................................................................35
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10.14. Governing Law; Waiver of Jury Trial.................................................................36
EXHIBIT A Notice of Appointment (or Revocation) of Authorized Representative..........................A-1
EXHIBIT B Form of Interest Rate Selection Notice......................................................B-1
EXHIBIT C Form of Opinion of Borrower's Counsel.......................................................C-1
EXHIBIT D Form of Borrowing Notice....................................................................D-1
EXHIBIT E Form of Note................................................................................E-1
EXHIBIT F Form of Facility Guaranty...................................................................F-1
Schedule 6.1 Organization and Ownership of Subsidiaries..................................................S-1
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SHORT TERM CREDIT AGREEMENT
THIS SHORT TERM CREDIT AGREEMENT, dated as of September 13, 2000 (the
"Agreement"), is made by and between XXXXXX SUPPLY, INC., a Florida corporation
having its principal place of business in Orlando, Florida (the "Borrower") and
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, as Lender ("Bank of America");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lender make available to
the Borrower a revolving credit facility of up to $50,000,000, the proceeds of
which are to be used to refinance certain existing indebtedness of the Borrower
and for general corporate purposes; and
WHEREAS, the Lender is willing to make such revolving credit facility
available to the Borrower upon the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower and the Lender hereby agree as follows:
ARTICLE I
Definitions and Terms
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1.1 Definitions. For the purposes of this Agreement, in addition
to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Applicable Lending Office" means, for each Type of Loan, the
"Lending Office" of the Lender (or of an affiliate of the Lender)
designated for such Type of Loan in Section 10.2 hereof or such other
office of the Lender (or an affiliate of the Lender) as the Lender may
from time to time specify to the Borrower by written notice in
accordance with the terms hereof as the office by which Loans of such
Type are to be made and maintained.
"Applicable Margin" means 0.775% per annum.
"Authorized Representative" means any of the President or any
Vice President, Chief Financial Officer, Treasurer, Secretary, or any
other Person expressly designated by the Board of Directors of the
Borrower (or the appropriate committee thereof) as an
Authorized Representative of the Borrower, as set forth from time to
time in a certificate in the form of Exhibit A.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (i) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (ii) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Borrower's Account" means a demand deposit account with the
Lender, which may be maintained at one or more offices of the Lender.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility, in the form of Exhibit D.
"Bridge Credit Agreement" means that certain Bridge Revolving
Credit Agreement dated as of November 30, 1999 by and between the
Borrower and SunTrust Bank, Central Florida, National Association.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and, (ii) with respect to the selection, funding, interest rate,
payment, and Interest Period of any Eurodollar Rate Loan, any day which
is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower and the Lender and on which the conditions set
forth in Section 6.1 have been satisfied.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the latest audited financial statements of the Borrower delivered to
the Lender pursuant to Section 6.07(a) of the Syndicated Revolving
Credit Agreement.
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"Consolidated Companies" means, collectively, the Borrower and
all of its Subsidiaries.
"Consolidated EBITR" means, for any fiscal period of the
Borrower, an amount equal to Consolidated Net Income (Loss) for such
period, plus, to the extent deducted in determining Consolidated Net
Income (Loss), (i) Consolidated Tax Expense for such period, (ii)
Consolidated Interest Expense for such period, and (iii) Consolidated
Rental Expense for such period.
"Consolidated Interest Expense" means, for any fiscal period
of Borrower, total interest expense (including without limitation,
interest expense attributable to Capital Leases and any program costs
incurred by the Borrower in connection with sales of accounts
receivable pursuant to a securitization program) of the Consolidated
Companies for such period, determined on a consolidated basis in
conformity with GAAP applied on a Consistent Basis.
"Consolidated Net Income (Loss)" means, for any fiscal period
of the Borrower, the net income (or loss) of the Consolidated Companies
for such period (taken as a single accounting period) determined on a
consolidated basis in conformity with GAAP applied on a Consistent
Basis; provided that there shall be excluded therefrom (i) any items of
gain or loss which were included in determining such Consolidated Net
Income and were not realized in the ordinary course of business; and
(ii) the income (or loss) of any party accrued prior to the date such
party becomes a Subsidiary of the Borrower or is merged into or
consolidated with Borrower or any of its Subsidiaries, or such party's
assets are acquired by any Consolidated Company, unless such party is
acquired in a transaction accounted for as a pooling of interests.
"Consolidated Rental Expense" means, for any fiscal period of
the Borrower, total operating lease expense of the Consolidated
Companies for such period, determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Tax Expense" means, for any fiscal period of the
Borrower, total operating lease expense of the Consolidated Companies
for such period, determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness,
lease, dividend, guaranty, letter of credit or other obligation (each a
"primary obligation") of another Person (the "primary obligor"),
whether or not contingent, (a) to purchase, repurchase or otherwise
acquire any such primary obligation or any property constituting direct
or indirect security therefor, or (b) to advance or provide funds (i)
for the payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor in
respect of any such primary obligation or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or
financial condition of such primary obligor,
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or (c) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor thereof to make payment of such primary
obligation, or (d) otherwise to assure or hold harmless the owner of
any such primary obligation against loss or failure or inability to
perform in respect thereof. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 3.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 3.2 of one Type of Loan into another
Type of Loan.
"Credit Parties" means, collectively, the Borrower and each
Guarantor.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
fees, and other amounts payable in respect of (x) Obligations or (y)
(except as otherwise expressly provided therein) the obligations of any
Credit Party other than the Borrower under any of the other Loan
Documents, at a rate of interest per annum which shall be two percent
(2%) above the Base Rate and (iii) in any case, the maximum rate
permitted by applicable law, if lower.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
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Rate 1- Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in Section 9.1.
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"Facility Guaranty" means each Guaranty Agreement between one
or more Guarantors and the Lender, delivered as of the Closing Date and
otherwise pursuant to Section 8.2 , as the same may be amended,
modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility by payment in full of all
Revolving Credit Outstandings, together with all accrued and unpaid
interest thereon, (b) all Swap Agreements shall have been terminated,
expired or cash collateralized, (c) the Revolving Credit Commitment
shall have terminated or expired and (d) the Borrower shall have fully,
finally and irrevocably paid and satisfied in full all Obligations
(other than Obligations consisting of continuing indemnities and other
contingent Obligations of the Borrower or any Guarantor that may be
owing to the Lender pursuant to the Loan Documents and expressly
survive termination of this Agreement).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Lender on such day on such transactions as determined by
the Lender.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, at any date, the Material Subsidiaries who
are required to be parties to a Facility Guaranty at such date, and
their respective successors and assigns.
"Incorporated Affirmative Covenants" has the meaning assigned
to such term in Section 8.1.
"Incorporated Covenants" has the meaning assigned to such term
in Section 8.1.
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"Incorporated Negative Covenants" has the meaning assigned to
such term in Section 8.1.
"Incorporated Representations and Warranties" has the meaning
assigned to such term in Section 7.1.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all Rate
Hedging Obligations of such Person, (c) all indebtedness secured by any
Lien on any property or asset owned or held by such Person regardless
or whether the indebtedness secured thereby shall have been assumed by
such Person or is non-recourse to the credit of such Person, and (d)
all Contingent Obligations of such Person, including all such items
incurred by any partnership or joint venture as to which such Person is
liable as a general partner or joint venturer.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, the deferred purchase price of any property or services, the
aggregate face amount of all surety bonds, letters of credit, and
bankers' acceptances, and (without duplication) all payment and
reimbursement obligations in respect thereof whether or not matured,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including reimbursement agreements
and conditional sales or similar title retention agreements), including
all such items incurred by any partnership or joint venture as to which
such Person is liable as a general partner or joint venturer, other
than trade payables and accrued expenses incurred in the ordinary
course of business.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto:
(a) the rate per annum equal to the rate determined
by the Lender to be the offered rate that appears on the page
of the Telerate screen that displays an average British
Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period,
or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such
page or service shall cease to be available, the rate per
annum equal to the rate determined by the Lender to be the
offered rate on such other page or other service that displays
an average British Bankers Association Interest Settlement
Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such
Interest Period, or
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(c) in the event the rates referenced in the
preceding subsections (a) and (b) are not available, the rate
per annum determined by the Lender as the rate of interest
(rounded upward to the next 1/100th of 1%) at which deposits
in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest
Rate would be offered by Bank of America's London Branch to
major banks in the offshore Dollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period.
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date seven (7), fourteen (14), twenty-one (21), or thirty (30) days
thereafter as notified to the Lender by the Authorized Representative
in accordance with the terms hereof; provided that if an Interest
Period for a Eurodollar Rate Loan would end on a day which is not a
Business Day, such Interest Period shall be extended to the next
Business Day; provided further, however, that in no event shall any
Interest Period be extended beyond the Revolving Credit Termination
Date.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit B.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" means any borrowing pursuant to an Advance under the
Revolving Credit Facility in accordance with Section 2.1.
"Loan Documents" means this Agreement, the Note, the Facility
Guaranties, and all other instruments and documents heretofore or
hereafter executed or delivered to or in favor of the Lender in
connection with the Loans made and transactions contemplated under this
Agreement, as the same may be amended, supplemented or replaced from
the time to time.
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"Materially Adverse Effect" means the occurrence of an event,
which would (i) cause the recognition of a liability in the amount of
$15,000,000 or more, as required by Statement of Financial Accounting
Standard No. 5, in the current quarter consolidated financial
statements of the Borrower and the Consolidated Companies or (ii) cause
an auditor to have a substantial doubt about the ability of the
Borrower to continue as a going concern after consideration of
management's plans as described in Statement of Auditing Standards, No.
50.
"Material Subsidiary" means each Subsidiary, now existing or
hereinafter established or acquired, that at any time prior to the
Facility Termination Date, has or acquires total assets in excess of
$1,000,000 or that accounted for or produced more than 5% of the
Consolidated EBITR of the Borrower on a consolidated basis during any
of the three most recently completed fiscal years of the Borrower.
"Note" means the promissory note of the Borrower evidencing
Loans executed and delivered to the Lender as provided in Section 2.3
substantially in the form of Exhibit E.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Note, (ii) all liabilities of
Borrower to the Lender (or any affiliate of the Lender) which arise
under a Swap Agreement, and (iii) the payment and performance of all
other obligations, liabilities and Indebtedness of the Borrower to the
Lender hereunder, under any one or more of the other Loan Documents or
with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
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"Principal Office" means the principal office of Bank of
America, presently located at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, XX0
000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Corporate Credit
Services, or such other office and address as the Lender may from time
to time designate.
"Private Placement Date" means the date on which the Borrower
receives proceeds of not less than $50,000,000 (net of all legal,
accounting, banking and underwriting fees and expenses, commissions,
discounts and other issuance expenses incurred in connection therewith
and all taxes required to be paid or accrued as a consequence of such
issuance) from the private offering of securities evidencing
Indebtedness of the Borrower or one of its Subsidiaries.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing. For purposes of any computation hereunder, each Rate
Hedging Obligation shall be valued at the Rate Hedge Value thereof.
"Rate Hedge Value" means, with respect to each contract,
instrument or other arrangement creating a Rate Hedging Obligation, the
net obligations of the Borrower or any Subsidiary thereunder equal to
the termination value thereof as determined in accordance with its
provisions (if such Rate Hedging Obligation has been terminated) or the
xxxx to market value thereof as determined on the basis of available
quotations from any recognized dealer in, or from Bloomberg or other
similar service providing market quotations for, the applicable Rate
Hedging Obligation (if such Rate Hedging Obligation has not been
terminated).
"Reserve Requirement" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, rounded upward
to the next 1/100th of 1%) in effect on such day, whether or not
applicable to any Lender, under regulations issued from time to time by
the Board of Governors of the Federal Reserve System for determining
the maximum reserve requirement (including any emergency, supplemental
or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The
Eurodollar Rate for each outstanding Eurodollar Rate
9
Loan shall be adjusted automatically as of the effective date of any
change in the Reserve Requirement.
"Revolving Credit Commitment" means a principal amount equal
to $50,000,000, as reduced from time to time in accordance with Section
2.1(e).
"Revolving Credit Facility" means the facility described in
Section 2.1 hereof providing for Loans to the Borrower by the Lender in
the aggregate principal amount of the Revolving Credit Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Loans then
outstanding.
"Revolving Credit Termination Date" means the earliest to
occur of (i) the Stated Termination Date or (ii) the Private Placement
Date or (iii) such date of termination of Lender's obligations pursuant
to Section 9.1 upon the occurrence of an Event of Default, or (iv) such
date as the Borrower may voluntarily and permanently terminate the
Revolving Credit Facility by payment in full of all Revolving Credit
Outstandings, together with all accrued and unpaid interest thereon.
"Stated Termination Date" means November 30, 2000.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Swap Agreement" means one or more agreements between the
Borrower and the Lender with respect to Indebtedness evidenced by the
Note, on terms mutually acceptable to Borrower and the Lender, which
agreements create Rate Hedging Obligations.
"Syndicated Revolving Credit Agreement" means that certain
Revolving Credit Agreement dated as of January 26, 1999 by and among
the Borrower, SunTrust Bank, Central Florida, National Association, as
Adminstrative Agent, First Union National Bank, as Documentation Agent,
Bank of America, N.A., formerly known as NationsBank, N.A., as
Syndication Agent, SouthTrust Bank, National Association, as Co-Agent,
and the banks and lending institutions from time to time parties
thereto, as amended by the First Amendment to Revolving Credit
Agreement, dated as of September 29, 1999, as so amended and as from
time to time further amended, restated, modified or supplemented in
accordance with its terms.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
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"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall have the
meanings assigned to such terms and shall be interpreted in accordance with GAAP
applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise defined
herein, except to the extent that the Uniform Commercial Code of another
jurisdiction is controlling, in which case such terms shall have the meaning
given in the Uniform Commercial Code of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used herein or in
any other Loan Document are solely for convenience of reference and shall not
constitute a part of any such document or affect the meaning, construction or
effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any Loan
Document to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections, paragraphs,
clauses, annexes, appendices, exhibits and schedules in or to such Loan
Document.
(e) All definitions set forth herein or in any other Loan Document
shall apply to the singular as well as the plural form of such defined term, and
all references to the masculine gender shall include reference to the feminine
or neuter gender, and vice versa, as the context may require.
(f) When used herein or in any other Loan Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting the
generality of any description preceding such term, and such term shall not limit
a general statement to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and times of day
specified herein shall refer to such dates and times at Charlotte, North
Carolina.
11
(i) Whenever interest rates or fees are established in whole or in part
by reference to a numerical percentage expressed as "___%", such arithmetic
expression shall be interpreted in accordance with the convention that 1% = 100
basis points.
(j) Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request) revisions
to, the Loan Documents, and any rule of construction that ambiguities are to be
resolved against the drafting party shall be inapplicable in the construing and
interpretation of the Loan Documents and all exhibits, schedules and appendices
thereto.
(k) Any reference to an officer of the Borrower or any other Person by
reference to the title of such officer shall be deemed to refer to each other
officer of such Person, however titled, exercising the same or substantially
similar functions.
(l) All references to any agreement or document as amended, modified or
supplemented, or words of similar effect, shall mean such document or agreement,
as the case may be, as amended, modified or supplemented from time to time only
as and to the extent permitted therein and in the Loan Documents.
12
ARTICLE II
The Credit Facilities
2.1. Loans.
(a) Commitment. Subject to the terms and conditions of this Agreement,
the Lender agrees to make Advances to the Borrower under the Revolving Credit
Facility from time to time from the Closing Date until the Revolving Credit
Termination Date; provided, however, that the Lender will not be required and
shall have no obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Lender has
accelerated the maturity of the Note as a result of an Event of Default;
provided further, however, that immediately after giving effect to each such
Advance, the amount of Revolving Credit Outstandings shall not exceed the
Revolving Credit Commitment. Within such limits and subject to the other terms
and conditions of this Agreement, the Borrower may borrow, repay and reborrow
under the Revolving Credit Facility on a Business Day from the Closing Date
until, but (as to borrowings and reborrowings) not including, the Revolving
Credit Termination Date.
(b) Amounts. Except as otherwise permitted by the Lender from time to
time, the amount of Revolving Credit Outstandings shall not exceed at any time
the Revolving Credit Commitment, and, in the event there shall be outstanding
any such excess, the Borrower shall immediately make such payments and
prepayments as shall be necessary to comply with this restriction. Each Advance
under the Revolving Credit Facility that is a Eurodollar Rate Loan shall be in
an amount of at least $5,000,000, and, if greater than $5,000,000, an integral
multiple of $1,000,000. Each Advance under the Revolving Credit Facility that is
a Base Rate Loan shall be in an amount of at least $1,000,000 or a greater
integral multiple of $1,000,000.
(c) Advances. (i) An Authorized Representative shall give the Lender
(1) at least one (1) Business Day's irrevocable telephonic notice of each
Eurodollar Rate Loan (whether representing an additional borrowing or the
Continuation of a borrowing hereunder or the Conversion of a borrowing hereunder
from a Base Rate Loan to a Eurodollar Rate Loan) prior to 10:30 A.M. and (2)
irrevocable telephonic notice of each Base Rate Loan (whether representing an
additional borrowing hereunder or the Conversion of borrowing hereunder from
Eurodollar Rate Loans to Base Rate Loans) prior to 10:30 A.M. on the day of such
proposed Loan. Each such notice shall be effective upon receipt by the Lender,
shall specify the amount of the borrowing, the type of Loan (Base Rate or
Eurodollar Rate), the date of borrowing and, if a Eurodollar Rate Loan, the
Interest Period to be used in the computation of interest. The Authorized
Representative shall provide the Lender written confirmation of each such
telephonic notice in the form of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions but failure to provide such
confirmation shall not affect the validity of such telephonic notice.
(ii) Not later than 2:00 P.M. on the date specified for each borrowing
under this Section 2.1, the Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Advance or Advances to
be made by it on such day available
13
to the Borrower by delivery of the proceeds thereof to the Borrower's Account or
otherwise as shall be directed in the applicable Borrowing Notice by the
Authorized Representative and reasonably acceptable to the Lender.
(d) Repayment of Loans. The principal amount of each Loan shall be due
and payable to the Lender in full on the Revolving Credit Termination Date, or
earlier as specifically provided herein. The principal amount of any Loan may be
prepaid in whole or in part on any Business Day, upon (A) at least one (1)
Business Day's irrevocable telephonic notice in the case of each Loan that is a
Eurodollar Rate Loan from an Authorized Representative (effective upon receipt)
to the Lender prior to 10:30 A.M. and (B) irrevocable telephonic notice in the
case of each Loan that is a Base Rate Loan from an Authorized Representative
(effective upon receipt) to the Lender prior to 10:30 A.M. on the day of such
proposed repayment. The Authorized Representative shall provide the Lender
written confirmation of each such telephonic notice but failure to provide such
confirmation shall not effect the validity of such telephonic notice. All
prepayments of Loans made by the Borrower shall be in the amount of (i)
$5,000,000 or such greater amount which is an integral multiple of $1,000,000 in
the case of Eurodollar Rate Loans, (ii) $1,000,000 or a greater integral
multiple of $1,000,000 in the case of Base Rate Loans, or (iii) the amount equal
to all Revolving Credit Outstandings, or (iv) such other amount as necessary to
comply with Section 2.1(b).
(e) Reductions. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Lender, effective upon receipt, to reduce the Revolving Credit
Commitment. Each such reduction shall be in the aggregate amount of $5,000,000
or such greater amount which is in an integral multiple of $1,000,000, or the
entire remaining Revolving Credit Commitment, and shall permanently reduce the
Revolving Credit Commitment. Each reduction of the Revolving Credit Commitment
shall be accompanied by payment of the Loans to the extent that the principal
amount of Revolving Credit Outstandings exceeds the Revolving Credit Commitment
after giving effect to such reduction, together with accrued and unpaid interest
on the amounts prepaid.
2.2. Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower to refinance
Indebtedness outstanding under the Bridge Credit Agreement, for general working
capital needs and other corporate purposes.
2.3. Note. Loans made by the Lender shall be evidenced by the Note,
which shall be dated the Closing Date and shall be duly completed, executed and
delivered by the Borrower.
ARTICLE III
Eurodollar Funding, Fees, and Payment Conventions
-------------------------------------------------
3.1. Interest Rate Options. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred
14
and be continuing, the Borrower shall have the option to elect the Type of Loan
and the duration of the initial and any subsequent Interest Periods and to
Convert Loans in accordance with Sections 2.1(c)(i) and 3.2, as applicable;
provided, however, (a) there shall not be outstanding at any one time Eurodollar
Rate Loans having more than [six (6)] different Interest Periods, (b) each
Eurodollar Rate Loan (including each Conversion into and each Continuation as a
Eurodollar Rate Loan) shall be in an amount of $5,000,000 or, if greater than
$5,000,00, an integral multiple of $1,000,000, and (c) no Eurodollar Rate Loan
shall have an Interest Period that extends beyond the Stated Termination Date.
If the Lender does not receive a Borrowing Notice or an Interest Rate Selection
Notice giving notice of election of the duration of an Interest Period or of
Conversion of any Loan to or Continuation of a Loan as a Eurodollar Rate Loan by
the time prescribed by Sections 2.1(c)(i) and 3.2, as applicable, the Borrower
shall be deemed to have elected to obtain or Convert such Loan to (or Continue
such Loan as) a Base Rate Loan until the Borrower notifies the Lender in
accordance with Section 3.2. The Borrower shall not be entitled to elect to
Continue any Loan as or Convert any Loan into a Eurodollar Rate Loan if a
Default or Event of Default shall have occurred and be continuing.
3.2. Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth in the definition of "Interest Period" and in
Section 3.1 and Article V, the Borrower may:
(a) upon delivery of telephonic notice to the Lender (which shall be
irrevocable) on or before 10:30 A.M. on any Business Day, Convert any Eurodollar
Rate Loan to a Base Rate Loan on the last day of the Interest Period for such
Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing, upon delivery of telephonic notice to the Lender (which shall
be irrevocable on or before 10:30 A.M. one (1) Business Day prior to the date of
such Conversion or Continuation:
(i) elect a subsequent Interest Period for any Eurodollar Rate
Loan to begin on the last day of the then current Interest Period for
such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate Loan on
any Business Day.
Each such notice shall be effective upon receipt by the Lender, shall specify
the amount of the Eurodollar Rate Loan affected, and, if a Continuation as or
Conversion into a Eurodollar Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Lender
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect the
validity of such telephonic notice.
3.3. Payment of Interest. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Loan, commencing on the first
date of such Loan until such Loan shall be repaid, at the applicable Base Rate
or Eurodollar Rate as designated by the
15
Borrower in the related Borrowing Notice or Interest Rate Selection Notice or as
otherwise provided hereunder. Interest on each Loan shall be paid on the earlier
of (a) in the case of any Base Rate Loan, monthly in arrears on the last
Business Day of each calendar month, commencing on September 29, 2000, until the
Revolving Credit Termination Date, at which date the entire principal amount of
and all accrued interest on the Loans shall be paid in full, (b) in the case of
any Eurodollar Rate Loan, on last day of the applicable Interest Period for such
Eurodollar Rate Loan, and (c) upon payment in full of the related Loan;
provided, however, that if any Event of Default shall occur and be continuing,
all amounts outstanding hereunder shall bear interest thereafter until paid in
full at the Default Rate.
3.4. Prepayments of Eurodollar Rate Loans. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by Section 5.5.
3.5. Manner of Payment. (a) Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid by or on behalf of the Borrower to the Lender, with respect to any Loan,
shall be made to the Lender at the Principal Office in Dollars in immediately
available funds without condition or deduction for any setoff, recoupment,
deduction or counterclaim on or before 12:30 P.M. on the date such payment is
due. The Lender may, but shall not be obligated to, debit the amount of such
payment from any one or more ordinary deposit accounts of the Borrower with the
Lender.
(b) Any payment made by or on behalf of the Borrower that is not made
both in Dollars in immediately available funds and prior to 12:30 P.M. on the
date such payment is to be made shall constitute a non-conforming payment. Any
such non-conforming payment shall not be deemed to be received until the later
of (i) the time such funds become available funds and (ii) the next Business
Day. Any non-conforming payment may constitute or become a Default or Event of
Default as otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a non-conforming
payment is made from the date such amount was due and payable until the later of
(i) the date such funds become available funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under the Note or any
other Loan Document becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business Day unless
provided otherwise under the definition of "Interest Period"; provided, however,
that interest and applicable fees shall continue to accrue during the period of
any such extension; and provided further, however, that in no event shall any
such due date be extended beyond the Revolving Credit Termination Date.
3.6. Facility Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Lender a facility fee equal to 0.225% per annum multiplied by the Revolving
Credit Commitment. Such facility fee shall be
16
due in arrears on the last Business Day of each calendar month commencing
September 29, 2000 to and on the Revolving Credit Termination Date.
3.7. Computation of Rates and Fees. Except as may be otherwise
expressly provided, all interest rates (including the Base Rate, each Eurodollar
Rate, and the Default Rate) and fees shall be computed on the basis of a year of
360 days and calculated for actual days elapsed.
ARTICLE IV
Guaranty
--------
4.1. Guaranty. To guarantee the full and timely payment and performance
of all Obligations now existing or hereafter arising, the Borrower caused the
Facility Guaranty to be executed and delivered by each Material Subsidiary on
the Closing Date. The Borrower hereby agrees to cause a Facility Guaranty to be
executed and delivered to the Lender by each newly acquired or created Material
Subsidiary or upon an existing Subsidiary becoming a Material Subsidiary in
accordance with Section 8.2 hereof.
4.2 Benefits to Guarantors. In consideration for the execution and
delivery of the Facility Guaranty by the Guarantors, the Borrower agrees to make
the benefit of Advances hereunder available to the Guarantors.
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by the Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such governmental authority, central bank, or
comparable agency:
(i) shall subject the Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Rate Loans, the Note, or its obligation to make Eurodollar
Rate Loans, or change the basis of taxation of any amounts payable to
the Lender (or its Applicable Lending Office) under this Agreement or
the Note in respect of any Eurodollar Rate Loans (other than taxes
imposed on the overall net
17
income of the Lender by the jurisdiction in which the Lender has its
principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Eurodollar
Rate) relating to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, the Lender (or
its Applicable Lending Office), including the Revolving Credit
Commitment of the Lender hereunder; or
(iii) shall impose on the Lender (or its Applicable Lending
Office) or on the London interbank market any other condition affecting
this Agreement or the Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to the Lender (or
its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by the Lender
(or its Applicable Lending Office) under this Agreement or the Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to the Lender on
demand such amount or amounts as will compensate the Lender for such increased
cost or reduction. If the Lender requests compensation by the Borrower under
this Section 5.1(a), the Borrower may, by notice to the Lender, suspend the
obligation of the Lender to make or Continue Loans of the Type with respect to
which such compensation is requested, or to Convert Loans of any other Type into
Loans of such Type, until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of Section 5.4 shall be
applicable); provided that such suspension shall not affect the right of the
Lender to receive the compensation so requested.
(b) If, after the date hereof, the Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of the
Lender or any corporation controlling the Lender as a consequence of the
Lender's obligations hereunder to a level below that which the Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to the
Lender such additional amount or amounts as will compensate the Lender for such
reduction.
(c) The Lender shall promptly notify the Borrower of any event of which
it has knowledge, occurring after the date hereof, which will entitle the Lender
to compensation pursuant to this Section 5.1 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of the Lender, be
otherwise disadvantageous to it. The Lender shall furnish to the
18
Borrower a statement setting forth the additional amount or amounts to be paid
to it hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, the Lender may use any reasonable averaging and
attribution methods.
(d) The provisions of this Section 5.1 shall continue in effect
notwithstanding the Facility Termination Date.
5.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Lender determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(b) the Lender determines (which determination shall be conclusive)
that the Eurodollar Rate will not adequately and fairly reflect the cost to the
Lender of funding Eurodollar Rate Loans for such Interest Period;
then the Lender shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lender shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
5.3. Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for the Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then the
Lender shall promptly notify the Borrower thereof and the Lender's obligation to
make or Continue Eurodollar Rate Loans and to Convert other Types of Loans into
Eurodollar Rate Loans shall be suspended until such time as the Lender may again
make, maintain, and fund Eurodollar Rate Loans (in which case the provisions of
Section 5.4 shall be applicable).
5.4. Treatment of Affected Loans. If the obligation of the Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 5.1
or 5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), the Lender's Affected Loans shall
be automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for Affected Loans (or, in the case of a Conversion
required by Section 5.3 hereof, on such earlier date as the Lender may specify
to the Borrower with a copy to the Lender) and, unless and until the Lender
gives notice as provided below that the circumstances specified in Section 5.1
or 5.3 hereof that gave rise to such Conversion no longer exist:
19
(a) to the extent that the Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to the Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by the
Lender as Loans of the Affected Type shall be made or Continued instead
as Base Rate Loans, and all Loans of the Lender that would otherwise be
Converted into Loans of the Affected Type shall be Converted instead
into (or shall remain as) Base Rate Loans.
5.5. Compensation. Upon the request of the Lender, the Borrower shall
pay to the Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of the Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(i) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9.1) on a date other than
the last day of the Interest Period for such Loan; or
(ii) any failure by the Borrower (for any reason, including
the failure of any condition precedent specified in Article VI to be
satisfied, other than the failure of the Lender to make a Loan
notwithstanding satisfaction of all conditions precedent thereto) to
borrow, Convert, Continue, or prepay a Eurodollar Rate Loan on the date
for such borrowing, Conversion, Continuation, or prepayment specified
in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
The provisions of this Section 5.5 shall continue in effect
notwithstanding the Facility Termination Date.
5.6. Taxes. (a) Any and all payments by the Borrower to or for the
account of the Lender hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which the
Lender (or its Applicable Lending Office) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to the Lender, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 5.6) the Lender receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions, (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law, and (iv) the Borrower shall furnish to the Lender, at its
address referred to in Section 10.2, the original or a certified copy of a
receipt evidencing payment thereof.
20
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify the Lender for the full amount of
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section
5.6) paid by the Lender (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) If the Borrower is required to pay additional amounts to or for the
account of the Lender pursuant to this Section 5.6, then the Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of the Lender, is not
otherwise disadvantageous to such Lender.
(e) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Lender the original or a certified copy of a
receipt evidencing such payment.
(f) The provisions of this Section 5.6 shall continue in effect
notwithstanding the Facility Termination Date.
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
--------------------------------------------------------
6.1. Conditions of Initial Advance. The obligation of the Lender to
make the initial Advance under the Revolving Credit Facility is subject to the
conditions precedent that:
(a) the Lender shall have received on the Closing Date, in
form and substance satisfactory to the Lender, the following:
(i) executed originals of each of this Agreement, the
Note, the initial Facility Guaranties, and the other Loan
Documents, together with all schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of special counsel to the Credit Parties
dated the Closing Date, addressed to the Lender and
satisfactory to Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., special
counsel to the Lender, substantially in the form of Exhibit C;
21
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificate issued as of a recent date by the
Secretary of State of the jurisdiction of formation of the
Borrower as to the due existence and good standing of the
Borrower;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
the Borrower as of a recent date by the Secretary of State or
comparable official of each jurisdiction in which the failure
to be qualified to do business or authorized so to conduct
business could have a Materially Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xi) evidence that all notices required to be given
to terminate the Bridge Credit Agreement in accordance with
its terms have been delivered;
(xii) evidence of repayment of all amounts due under
the Bridge Credit Agreement as of the Closing Date;
(xiii) evidence of termination of the Bridge Credit
Agreement;
(xiv) evidence that all fees payable by the Borrower
on the Closing Date (including the upfront fee) to the Lender
have been paid in full, including the due diligence expenses
of the Lender and the fees and expenses of counsel for the
Lender to the extent invoiced prior to or on the Closing Date
(which may include
22
amounts constituting reasonable estimates of such fees and
expenses incurred or to be incurred in connection with the
transaction; provided that no such estimate shall thereafter
preclude the final settling of accounts as to such fees and
expenses);
(xv) a certificate of the chief financial officer of
the Borrower as to the matters described in Section 6.1(b);
and
(xvi) such other documents, instruments, certificates
and opinions as the Lender may reasonably request on or prior
to the Closing Date in connection with the consummation of the
transactions contemplated hereby; and
(b) In the good faith judgment of the Lender:
(i) there shall not have occurred or become known to
the Lender any event, condition, situation or status since the
date of the information contained in the financial and
business projections, budgets, pro forma data and forecasts
concerning the Borrower and its Subsidiaries delivered to the
Lender prior to the Closing Date that has had or could
reasonably be expected to result in a Materially Adverse
Effect;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Materially Adverse Effect; and
(iii) the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Credit
Parties is a party or by which any of them or their properties
is bound.
6.2. Conditions of Loans. The obligations of the Lender to make any
Loans hereunder on or subsequent to the Closing Date are subject to the
satisfaction of the following conditions:
(a) the Lender shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Credit Parties
incorporated by reference in Article VII and in each of the other Loan
Documents shall be true and correct in all material respects on and as
of the date of such Advance, with the same effect as though such
representations and warranties had been made on and as of such date;
23
(c) at the time of (and after giving effect to) each Advance,
no Default or Event of Default specified in Article IX shall have
occurred and be continuing; and
(d) immediately after giving effect to a Loan, the aggregate
principal balance of all outstanding Loans shall not exceed the
Revolving Credit Commitment.
24
ARTICLE VII
Incorporation of Representations and Warranties
-----------------------------------------------
7.1. Incorporated Representations and Warranties. Reference is made to
the representations and warranties contained in Article V of the Syndicated
Revolving Credit Agreement (hereinafter referred to as the "Incorporated
Representations and Warranties"). The Borrower agrees with the Lender that,
effective as of the date hereof, the Incorporated Representations and Warranties
(and all other relevant provisions of the Syndicated Revolving Credit Agreement
related thereto) are hereby incorporated by reference into this Agreement
(including the definition of terms used therein which appear in other provisions
of the Syndicated Revolving Credit Agreement and the schedules thereto except to
the extent otherwise specifically provided in the following provisions of this
Section 6.1) to the same extent and with the same effect as if set forth fully
herein and shall inure to the benefit of the Lender. Notwithstanding the
foregoing, all references in the Syndicated Revolving Credit Agreement to (a)
the "Administrative Agent" and "Lenders" shall be deemed to mean the "Lender",
(b) "this Agreement", the "Credit Documents", the "Revolving Notes" and the
"Loans" shall be deemed to refer to this Agreement, the Loan Documents, the Note
and the Loans, respectively, (c) the words "hereunder" and "hereby" and the like
shall be deemed to refer to this Agreement, (d) Schedule 5.01 shall be deemed to
be Schedule 6.1 hereto, and (e) the financial statements in Section 5.03 (solely
for the purpose of the representation and warranty contained in such Section
5.03 but not for the purpose of any cross-reference to such Section 5.03 or to
the financial statements described therein contained in any other provision of
Article V) shall be deemed to be those financial statements most recently
delivered to the Lender pursuant to Section 6.07 of the Syndicated Revolving
Credit Agreement. In the event a waiver is granted under the Syndicated
Revolving Credit Agreement or an amendment or modification is executed with
respect to the Syndicated Revolving Credit Agreement, and such waiver, amendment
or modification affects the Incorporated Representations and Warranties, then
such waiver, amendment or modification shall be automatically effective with
respect to the Incorporated Representations and Warranties as incorporated by
reference into this Agreement. In the event of the termination of the Syndicated
Revolving Credit Agreement or in the event that the Lender is no longer a lender
thereunder, the Borrower agrees to negotiate in good faith to enter into
appropriate amendments and modifications to this Agreement to set forth the
representations and warranties governing the Borrower and its Subsidiaries
herein but unless and until such amendments or modifications are in full force
and effect, the terms and provisions of the Syndicated Revolving Credit
Agreement incorporated herein by reference shall continue in full force and
effect notwithstanding the termination or amendment thereof. The failure of the
Borrower to comply with this Article VII shall constitute an Event of Default
pursuant to this Agreement.
ARTICLE VIII
Incorporation of Affirmative and Negative Covenants
---------------------------------------------------
8.1. Incorporated Covenants. Reference is made to the affirmative
covenants contained in Article VI of the Syndicated Revolving Credit Agreement
(hereinafter referred to as
25
the "Incorporated Affirmative Covenants") and the negative covenants contained
in Article VII of the Syndicated Revolving Credit Agreement (hereinafter
referred to as the "Incorporated Negative Covenants" and collectively with the
Incorporated Affirmative Covenants, the "Incorporated Covenants"). The Borrower
agrees with the Lender that, effective as of the date hereof, the Incorporated
Covenants (and all other relevant provisions of the Syndicated Revolving Credit
Agreement related thereto) are hereby incorporated by reference into this
Agreement (including the definition of terms used therein which appear in other
provisions of the Syndicated Revolving Credit Agreement and the schedules
thereto) to the same extent and with the same effect as if set forth fully
herein and shall inure to the benefit of the Lender. Notwithstanding the
foregoing, all references in the Syndicated Revolving Credit Agreement to (a)
the "Administrative Agent" and "Lenders" shall be deemed to mean the "Lender",
(b) "this Agreement", the "Credit Documents", the "Revolving Notes" and the
"Loans" shall be deemed to refer to this Agreement, the Loan Documents, the Note
and the Loans, respectively, (c) the words "hereunder" and "hereby" and the like
shall be deemed to refer to this Agreement, and (d) $75,000,000 in Section
7.01(g) shall be deemed to be $25,000,000. In the event a waiver is granted
under the Syndicated Revolving Credit Agreement or an amendment or modification
is executed with respect to the Syndicated Revolving Credit Agreement, and such
waiver, amendment or modification affects the Incorporated Covenants, then such
waiver, amendment or modification shall be automatically effective with respect
to the Incorporated Covenants as incorporated by reference into this Agreement.
In the event of the termination of the Syndicated Revolving Credit Agreement or
in the event that the Lender is no longer a lender thereunder, the Borrower
agrees to negotiate in good faith to enter into appropriate amendments and
modifications to this Agreement to set forth the affirmative and negative
covenants governing the Borrower and its Subsidiaries herein but unless and
until such amendments or modifications are in full force and effect, the terms
and provisions of the Syndicated Revolving Credit Agreement incorporated herein
by reference shall continue in full force and effect notwithstanding the
termination or amendment thereof. The failure of the Borrower to comply with
this Article VIII shall constitute an Event of Default pursuant to this
Agreement.
8.2. Additional Guarantors. The Borrower shall cause each new Material
Subsidiary reported to the lenders pursuant to Section 6.07(l) of the Syndicated
Revolving Credit Agreement, incorporated into this Agreement pursuant to Section
8.1 above, to execute and deliver to the Lender, simultaneously with the report
given pursuant to Section 6.07(l) of the Syndicated Revolving Credit Agreement,
a Facility Guaranty substantially in the form of Exhibit F, together with the
related documents of the kind described in Section 6.1, as appropriate, all in
form and substance satisfactory to the Lender.
26
ARTICLE IX
Events of Default and Acceleration
----------------------------------
9.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan or other Obligation, when and as the same
shall be due and payable whether pursuant to any provision of Article
II or Article III or Article IV, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan or other Obligation or of any
fees or other amounts payable to the Lender on the date on which the
same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any Incorporated Negative Covenant set forth in Section 7.2 or
Article VIII;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Note (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Lender
or an officer of the Borrower becomes aware of such default, or if a
default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement or provision contained in any of
the other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or lien in favor of the Lender or
delivered to the Lender in connection with or pursuant to this
Agreement or any of the Obligations, or if any Loan Document ceases to
be in full force and effect (other than as expressly provided for
hereunder or thereunder or with the express written consent of the
Lender), or if without the written consent of the Lender, this
Agreement or any other Loan Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly
provided for hereunder or thereunder or with the express written
consent of the Lender); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of the Borrower or any Subsidiary in an amount or Rate
Hedge Value, as applicable, not less than $5,000,000 in the aggregate
outstanding, or (ii) a default, which is not waived, in the
performance, observance or fulfillment of any
27
term or covenant contained in any agreement or instrument under or
pursuant to which any such Indebtedness may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, or
(iii) with respect to any such Rate Hedging Obligation, any termination
event shall occur as to which the Borrower or any Subsidiary is the
"affected party" under the agreement or instrument governing such Rate
Hedging Obligation, or (iv) any other event of default as specified in
any agreement or instrument under or pursuant to which any such
Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any Subsidiary, and such default or event of
default or termination event shall continue for more than the period of
grace, if any, therein specified, or such default or event of default
or termination event shall permit the holder of or counterparty to any
such Indebtedness (or the Lender or trustee acting on behalf of one or
more holders or counterparties) to accelerate the maturity of any such
Indebtedness or terminate any agreement or instrument governing any
such Rate Hedging Obligation; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Lender by or on behalf of the
Borrower or any other Credit Party pursuant to or in connection with
any Loan Document, or otherwise, shall be false or misleading in any
material respect when given; or
(g) if the Borrower or any Subsidiary or other Credit Party
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary or other Credit Party seeking liquidation,
reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state, which petition is not dismissed within
sixty (60) days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there
is commenced against the Borrower or any Subsidiary or other Credit
Party any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the
28
Borrower or any Subsidiary or other Credit Party takes any action to
indicate its consent to or approval of any such proceeding or petition;
or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $5,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $5,000,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days; or
(k) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents; or
(l) if there shall occur and not be waived an "Event of
Default" (as defined in the Syndicated Revolving Credit Agreement)
under the Syndicated Revolving Credit Agreement;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Lender may declare any obligation of the Lender
to make further Loans terminated, whereupon the obligation of
the Lender to make further Loans hereunder shall terminate
immediately, and (ii) the Lender may declare by notice to the
Borrower any or all of the Obligations to be immediately due
and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrower to the
Lender, shall forthwith become immediately due and payable
without presentment, demand, protest, notice or other
formality of any kind, all of which are hereby expressly
waived, anything contained herein or in any instrument
evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there
shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lender to make Loans hereunder
shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the
necessity of any action by the Lender;
(B) the Lender shall have all of the rights and
remedies available under the Loan Documents or under any
applicable law.
29
9.2. Lender to Act. In case any one or more Events of Default shall
occur and not have been waived, the Lender may proceed to protect and enforce
its rights or remedies either by suit in equity or by action at law, or both,
whether for the specific performance of any covenant, agreement or other
provision contained herein or in any other Loan Document, or to enforce the
payment of the Obligations or any other legal or equitable right or remedy.
9.3. Cumulative Rights. No right or remedy herein conferred upon the
Lender is intended to be exclusive of any other rights or remedies contained
herein or in any other Loan Document, and every such right or remedy shall be
cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
9.4. No Waiver. No course of dealing between the Borrower and the
Lender or any failure or delay on the part of the Lender in exercising any
rights or remedies under any Loan Document or otherwise available to it shall
operate as a waiver of any rights or remedies and no single or partial exercise
of any rights or remedies shall operate as a waiver or preclude the exercise of
any other rights or remedies hereunder or of the same right or remedy on a
future occasion.
9.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Note has been accelerated pursuant to
Article IX hereof, all payments received by the Lender hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Lender in the following order:
(a) amounts due to the Lender pursuant to Sections 3.6 and
10.5;
(b) payments of interest on Loans;
(c) payments of principal of Loans;
(d) amounts due to the Lender pursuant to Section 10.9;
(e) payments of all other amounts due under any of the Loan
Documents, including amounts due to the Lender or its affiliate in
respect of Obligations consisting of liabilities under any Swap
Agreement with the Lender or its affiliate on a pro rata basis
according to the amounts owed; and
(f) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
30
ARTICLE X
Miscellaneous
-------------
10.1. Participations. (a) The Lender may sell participations to one or
more Persons in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of the Revolving
Credit Commitment or the Loans); provided, however, that (i) the Lender's
obligations under this Agreement shall remain unchanged, (ii) the Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participant shall be entitled to the benefit of the
yield protection provisions contained in Article V and the right of set-off
contained in Section 10.3, and (iv) the Borrower shall continue to deal solely
and directly with the Lender in connection with the Lender's rights and
obligations under this Agreement, and the Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans and the Note and
to approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on the Loans or
the Note, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or the Note, or extending the Revolving Credit
Commitment).
(b) Notwithstanding any other provision set forth in this Agreement,
the Lender may at any time assign and pledge all or any portion of the Loans and
the Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the Lender from its obligations hereunder.
(c) The Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of the Lender from time to time to
assignees and participants (including prospective assignees and participants).
(d) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and agreements by or on
behalf of the Borrower which are contained in the Loan Documents shall inure to
the benefit of the successors and permitted assigns of the Lender. The Borrower
may not assign or otherwise transfer to any other Person any right, power,
benefit, or privilege (or any interest therein) conferred hereunder or under any
of the other Loan Documents, or delegate (by assumption or otherwise) to any
other Person any duty, obligation, or liability arising hereunder or under any
of the other Loan Documents, and any such purported assignment, delegation or
other transfer shall be void.
10.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such
31
party, if sent prepaid by certified or registered mail, return receipt
requested, in each case delivered, transmitted or mailed, as the case may be, to
the address or telefacsimile number, as appropriate, set forth below or such
other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower or any Credit Party:
Xxxxxx Supply, Inc.
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: J. Xxxxxxx Xxxx
Telephone: (___) ___-____
Telefacsimile: (___) ___-____
(b) if to the Lender:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: _____________, Corporate Credit Services
Telephone: (704) 386-____
Telefacsimile: (000) 000-0000
Lending Office for Base Rate Loans and Eurodollar Loans:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: _____________, Corporate Credit Services
Telephone: (704) 386-____
Telefacsimile: (000) 000-0000
with a copy to:
Bank of America, N.A.
000 Xxxxxxxxx 0xx Xxxxxx, 00xx Xxxxx
FL7-950-14-02
Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
32
10.3. Right of Set-off; Adjustments. Upon the occurrence and during the
continuance of any Event of Default, the Lender (and each of its affiliates) is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Lender (or any of its affiliates) to or for the credit or
the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and the Note,
irrespective of whether the Lender shall have made any demand under this
Agreement or the Note and although such obligations may be unmatured. The Lender
agrees promptly to notify the Borrower after any such set-off and application
made by the Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Lender under this Section 10.3 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that the Lender may
have.
10.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lender of the Loans and
the execution and delivery to the Lender of this Agreement and the Note and
shall continue in full force and effect so long as any of Obligations remain
outstanding or the Lender has any Revolving Credit Commitment hereunder or the
Borrower has continuing obligations hereunder unless otherwise provided herein.
10.5. Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Lender in connection with the preparation, execution, delivery,
administration, modification, and amendment of this Agreement, the other Loan
Documents, and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Lender
(including the cost of internal counsel) with respect thereto and with respect
to advising the Lender as to its rights and responsibilities under the Loan
Documents. The Borrower further agrees to pay on demand all costs and expenses
of the Lender, if any (including, without limitation, reasonable attorneys' fees
and expenses and the cost of internal counsel), in connection with the
enforcement (whether through negotiations, legal proceedings, or otherwise) of
the Loan Documents and the other documents to be delivered hereunder.
10.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party to such Loan Document and the Lender.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on the Lender's part in exercising any right, remedy or option shall
operate as a waiver of such or any other right, remedy or option or of any
Default or Event of Default.
10.7. Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account
33
for more than one such fully-executed counterpart. Signatures on communications
and other documents may be transmitted by facsimile only with the consent of the
Lender in its sole and absolute discretion in each instance. The effectiveness
of any such signatures accepted by the Lender shall, subject to applicable law,
have the same force and effect as manual signatures and shall be binding on all
parties. The Lender may also require that any such signature be confirmed by a
manually-signed hard copy thereof. Each party hereto hereby adopts as an
original executed signature page each signature page hereafter furnished by such
party to the Lender (or an agent of the Lender) bearing (with the consent of the
Lender) a facsimile signature by or on behalf of such party. Nothing contained
in this Section shall limit the provisions of Section 10.2.
10.8. Termination. This Agreement shall terminate on the Facility
Termination Date, except that (x) those provisions which by the express terms
hereof continue in effect notwithstanding the Facility Termination Date, and (y)
obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable shall continue in effect. Notwithstanding
the foregoing, if after receipt of any payment of all or any part of the
Obligations, the Lender is for any reason compelled to surrender such payment to
any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason or elects to repay any such amount in good faith settlement of a pending
or threatened avoidance claim, (i) this Agreement shall continue in full force
(or be reinstated, as the case may be) and the Borrower shall be liable to, and
shall indemnify and hold the Lender harmless for, the amount of such payment
surrendered until the Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken, by the Lender in
reliance upon such payment, and any such contrary action so taken shall be
without prejudice to the Lender's rights under this Agreement and shall be
deemed to have been conditioned upon such payment having become final and
irrevocable.
10.9. Indemnification; Limitation of Liability. (a) The Borrower agrees
to indemnify and hold harmless the Lender and each of its affiliates and their
respective officers, directors, employees, agents, and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without limitation, reasonable
attorneys' fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith) the
Loan Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such claim,
damage, loss, liability, cost, or expense is found in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 10.9 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its Subsidiaries, any Guarantor, or
any security holders or creditors
34
thereof arising out of, related to or in connection with the transactions
contemplated herein, except to the extent that such liability is found in a
final nonappealable judgment by a court of competent jurisdiction to have
directly resulted from such Indemnified Party's gross negligence or willful
misconduct. The Borrower agrees not to assert any claim against the Lender, any
of its affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
(b) The agreements and obligations of the Borrower contained in this
Section 10.9 shall continue in effect notwithstanding the Facility Termination
Date.
10.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
10.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
10.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
10.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Note, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Lender an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the
35
intention of the Lender and the Borrower to conform strictly to any applicable
usury laws. Accordingly, if the Lender contracts for, charges, or receives any
consideration which constitutes interest in excess of the Highest Lawful Rate,
then any such excess shall be cancelled automatically and, if previously paid,
shall at the Lender's option be applied to the outstanding amount of the Loans
made hereunder or be refunded to the Borrower. As used in this paragraph, the
term "Highest Lawful Rate" means the maximum lawful interest rate, if any, that
at any time or from time to time may be contracted for, charged, or received
under the laws applicable to the Lender which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
10.14. Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE, NOTWITHSTANDING ITS EXECUTION OUTSIDE OF SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF DADE,
STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE
EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER HEREBY
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 10.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
36
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE
APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
LENDER HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY
SUCH ACTION OR PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signatures on following pages]
37
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
XXXXXX SUPPLY, INC.
WITNESS:
_________________________ By:_________________________________________
_________ Name:____________________________________________
_________________________ Title:___________________________________________
BANK OF AMERICA, N.A.,
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
EXHIBIT A
---------
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Short Term Credit Agreement dated as of
September 13, 2000 (the "Agreement") between Xxxxxx Supply, Inc., a Florida
corporation (the "Borrower"), and Bank of America, N.A., as Lender (the
"Lender"). Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
________________________ ________________________ ______________________
________________________
________________________
________________________ ________________________ ______________________
________________________ ________________________ ______________________
________________________
Borrower hereby revokes (effective upon receipt hereof by the Lender) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of __________________, ____.
XXXXXX SUPPLY, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
A-1
EXHIBIT B
---------
Form of Interest Rate Selection Notice
To: Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: ___________________
Telefacsimile: (000) 000-0000
Reference is hereby made to the Short Term Credit Agreement dated as of
September 13, 2000 (the "Agreement") between Xxxxxx Supply, Inc. (the
"Borrower") and Bank of America, N.A., as Lender (the "Lender"). Capitalized
terms used but not defined herein shall have the respective meanings therefor
set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Lender of the following selection of a type of Loan and Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
Loan
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
-----------------------
(1) For any Eurodollar Rate Loan, seven, fourteen, twenty-one or thirty days.
(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000 if a
Eurodollar Rate Loan and $1,000,000 or a greater integral multiple thereof
if a Base Rate Loan.
(3) At least one (1) Business Day later if a Eurodollar Rate Loan.
XXXXXX SUPPLY, INC.
BY:____________________________________
Authorized Representative
DATE:
B-1
EXHIBIT C
---------
Form of Opinion of Borrower's Counsel
September 13, 2000
Bank of America, N.A.,
Bank of America Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: $50,000,000 Revolving Credit Facility between Bank of America, N.A., as
Lender, and Xxxxxx Supply, Inc., as Borrower
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx Supply, Inc., a Florida corporation
(the "Borrower"), and the following Persons (the "Guarantors"): __________,
__________ and __________, in connection with the negotiation, execution and
delivery of the Short Term Credit Agreement of even date herewith between you as
lender (the "Lender") and the Borrower (the "Credit Agreement"; capitalized
terms not otherwise defined herein shall have the meanings provided therefor in
the Credit Agreement) and the execution and delivery of the other Transaction
Documents (as defined below) by the Borrower and one or more Guarantors,
pursuant to which the Lender is providing the Revolving Credit Facility in the
amount of $50,000,000, and the other transactions contemplated under the Credit
Agreement.
This opinion is being delivered in accordance with the conditions set
forth in Section 6.1 of the Credit Agreement.
As such counsel, we have reviewed originals, or copies certified or
otherwise authenticated to our satisfaction, of the following documents as
executed and delivered as of the date hereof (collectively, the "Transaction
Documents"):
1. the Credit Agreement;
2. the Note; and
3. the Facility Guaranty.
C-1
For purposes of the opinions expressed below, we have assumed that all
natural persons executing the Transaction Documents have legal capacity to do
so; that all signatures (other than those of representatives of the Borrower and
the Guarantors on the Transaction Documents) on all documents submitted to us
are genuine; that all documents submitted to us as originals (other than the
Transaction Documents) are authentic; and that all documents submitted to us as
certified copies or photocopies conform to the originals of such documents,
which themselves are authentic.
For purposes of giving this opinion, we have examined such corporate,
company, partnership and other records of the Borrower and the Guarantors,
certificates of public officials, certificates of appropriate officers,
managers, partners or other representatives of the Borrower and the Guarantors,
and such other documents, and have made such inquiries as we have deemed
appropriate.
Based upon and subject to the foregoing, it is our opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation and is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which, in light of the nature of business
transacted by it or the property owned by it, such qualification is necessary
and the failure so to qualify might impair title to any property material to its
operations or its right to enforce any material contract against others, to
expose it to any substantial liability or impairment of rights or defenses in
such jurisdiction. The Borrower has full corporate power and authority to own
its assets and conduct the businesses in which it is now engaged and as are
expressly contemplated by the Transaction Documents, and has full corporate
power and authority to enter into each of the Transaction Documents to which it
is a party and to perform its obligations thereunder and consummate the
transactions contemplated therein.
2. Each of the Transaction Documents to which the Borrower is a party
has been duly authorized by the Board of Directors of the Borrower (and by any
required shareholder action), has been duly executed and delivered by the
Borrower, and constitutes the legal, valid and binding obligation, agreement,
instrument or conveyance, as the case may be, of the Borrower, enforceable
against the Borrower in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization and
other similar laws relating to or affecting creditors' rights generally and by
the application of general equitable principles (whether considered in
proceedings at law or in equity).
3. Each Guarantor is a corporation, limited liability company or
limited partnership, as the case may be, duly organized, validly existing and in
good standing under the laws of its respective state of its formation and is
duly qualified to transact business as a foreign entity and is in good standing
in each other jurisdiction in which, in light of the nature of the business
transacted by such Guarantor and the property owned by it, such qualification is
necessary and the failure to so qualify might impair title to any property
material to the operations of such Guarantor or such Guarantor's right to
enforce any material contract against others, or expose such Guarantor to any
substantial liability or impairment of rights or defenses in such
C-2
jurisdiction. Each Guarantor has full power and authority to own its assets and
conduct the businesses in which it is now engaged and as expressly contemplated
in the Transaction Documents, and has full power and authority o enter into each
of the Transaction Documents to which it is a party and to perform its
obligations thereunder and consummate the transactions contemplated therein.
4. Each of the Transaction Documents to which each Guarantor is a party
has been duly authorized by the Board of Directors, managers, or general
partners of such Guarantor, as the case may be (and by any required shareholder,
member or limited partner action, as applicable), has been duly executed and
delivered by such Guarantor, and constitutes the legal, valid and binding
obligation, agreement or instrument, as the case may be, of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization and other similar laws relating to or affecting creditors' rights
generally and by the application of general equitable principles (whether
considered in proceedings at law or in equity).
5. Neither the execution or delivery of, nor performance by the
Borrower or any Guarantor of its obligations under, the Transaction Documents
(a) does or will conflict with, violate or constitute a breach of (i) any of the
Organizational Documents or Operating Documents of the Borrower or any
Guarantor, (ii) any laws, rules or regulations applicable to the Borrower or any
Guarantor, or (iii) any contract, agreement, indenture, lease, instrument,
commitment, judgment, writ, determination, order, decree or arbitral award, of
which we have knowledge after due inquiry of appropriate representatives of the
the Borrower and the Guarantors, to which the Borrower, any Guarantor or any
other Subsidiary is a party or by which the Borrower, any Guarantor or any other
Subsidiary or any of their properties is bound, (b) requires the prior consent
of, notice to, license from or filing with any Governmental Authority which has
not been duly obtained or made on or prior to the date hereof, or (c) does or
will result in the creation or imposition of any lien, pledge, charge or
encumbrance of any nature upon or with respect to any of the properties of the
Borrower, any Guarantor or any other Subsidiary.
6. Insofar as we have knowledge of the operations and affairs of the
Borrower and the Guarantors and upon due inquiry of appropriate representatives
of the Borrower and the Guarantors, there is no pending or overtly threatened,
action, suit, investigation or proceeding (including, without limitation, any
action, suit, investigation, or proceeding under any environmental or labor law)
before or by any court, or governmental department, commission, board, bureau,
instrumentality, agency or arbitral authority, (i) which calls into question the
validity or enforceability of any of the Transaction Documents, or the titles to
their respective offices or authority of any officers, members, or partners, as
applicable of the Borrower or any Guarantor or (ii) an adverse result in which
could reasonably be expected to have a Materially Adverse Effect.
7. Insofar as we have knowledge of the operations and affairs of the
Borrower and the Guarantors and upon due inquiry of appropriate representatives
of the Borrower and the Guarantors, there exists no event, circumstance or
condition (except that we express no opinion as to financial reporting or
accounting matters) which, immediately upon giving effect to the
C-3
Transaction Documents, would constitute a Default or Event of Default under the
Credit Agreement.
8. None of the transactions contemplated by the Credit Agreement,
including, without limitation, the use of the proceeds of the Loans provided for
in the Transaction Documents, will violate or result in a violation of Section 7
of the Securities Exchange Act of 1934, as amended, any regulations issued
pursuant thereto, or regulations T, U or X of the Board of Governors of the
Federal Reserve System.
9. A state or federal court located in the State of Florida, if
properly presented with the question and applying the choice of laws rules of
the State of Florida, would in a properly reasoned opinion give effect to the
provisions of the Transaction Documents providing that the Transaction Documents
shall be governed by and construed in accordance with the internal substantive
laws of the State of Florida.
10. The rate or rates of interest provided for in the Transaction
Documents, including all late payment charges and the Default Rate provided for
therein, do not and will violate or conflict with, or give rise to any defense
to payment of the Obligations or to any claim, counterclaim, setoff or
recoupment under, any usury or other law or regulation of the State of Florida
governing the maximum rate of interest or amount of other charges that may be
charged or incurred in transactions of the type contemplated under the
Transaction Documents.
11. No documentary, stamp, intangibles, excise or other tax is payable
to any Governmental Authority of the State of Florida in connection with the
execution, delivery, enforcement, recording or filing of any of the Transaction
Documents, other than court costs and fees that may be or become payable in
connection with the enforcement of the Transaction Documents.
12. Solely by reason of (i) the execution and delivery of, and
performance by the parties thereto under, the Transaction Documents, (ii) the
acceptance of the Note and the receipt of payments in respect of the
Obligations, or (iii) the enforcement of rights and remedies by the Lender under
the Transaction Documents, the Lender is not and shall not (a) be required to
qualify to do business in the State of Florida or (b) be subject to the payment
of any franchise or income tax or other tax imposed by the State of Florida or
any agency thereof payable in respect of payments received under the Transaction
Documents.
Our opinions contained herein are rendered solely in connection with
the transactions contemplated under the Transaction Documents and may not be
relied upon in any manner by any Person other than the addressees hereof, any
successor or assignee of any addressee (including successive assignees) and any
Person who shall acquire a participation interest in the interest of the Lender
(collectively, the "Reliance Parties"), or by any Reliance Party for any other
purpose. Our opinions herein shall not be quoted or otherwise included,
summarized or referred to in any publication or document, in whole or in part,
for any purpose whatsoever, or furnished to any Person other than a Reliance
Party (or a Person considering whether to become a Reliance Party), except as
may be required of any Reliance Party by applicable law or regulation or in
C-4
accordance with any auditing or oversight function or request of regulatory
agencies to which a Reliance Party is subject.
C-5
EXHIBIT D
---------
Form of Borrowing Notice
To: Bank of America, N.A.,
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Corporate Credit Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Short Term Credit Agreement dated as of
September 13, 2000 (the "Agreement") between Xxxxxx Supply, Inc. (the
"Borrower"), and Bank of America, N.A., as Lender (the "Lender"). Capitalized
terms used but not defined herein shall have the respective meanings therefor
set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Lender that Loans of the type and amount set forth below be made on the
date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
Loan
----
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
-----------------------
(1) For any Eurodollar Rate Loan, seven, fourteen, twenty-one or thirty days.
(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000 if a
Eurodollar Rate Loan and $1,000,000 or a greater integral multiple thereof
if a Base Rate Loan.
(3) At least one (1) Business Day later if a Eurodollar Rate Loan.
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions].
The undersigned hereby certifies that:
1. No Default or Event of Default has occurred and is continuing either
now or after giving effect to the borrowing described herein; and
D-1
2. All the representations and warranties incorporated by reference in
Article VII of the Agreement and in the Loan Documents (other than those
expressly stated to refer to a particular date) are true and correct as of the
date hereof.
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
XXXXXX SUPPLY, INC
BY:___________________________________
Authorized Representative
DATE:_________________________________
D-2
EXHIBIT E
---------
Form of Note
Promissory Note
$50,000,000 _________, ______________
September 13, 2000
FOR VALUE RECEIVED, XXXXXX SUPPLY, INC., a Florida corporation having
its principal place of business located in Orlando, Florida (the "Borrower"),
hereby promises to pay to the order of BANK OF AMERICA, N.A. (the "Lender"), at
the times set forth in the Short Term Credit Agreement dated as of September 13,
2000 between the Borrower and the Lender (the "Agreement" -- all capitalized
terms not otherwise defined herein shall have the respective meanings set forth
in the Agreement), in lawful money of the United States of America, in
immediately available funds, the principal amount of FIFTY MILLION DOLLARS
($50,000,000) or, if less than such principal amount, the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to the
Agreement on the Revolving Credit Termination Date or such earlier date as may
be required pursuant to the terms of the Agreement, and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates provided in Articles II and IV of the
Agreement. All or any portion of the principal amount of Loans may be prepaid or
required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Note shall become immediately due
and payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Note is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Loans evidenced hereby were
or are made and are to be repaid. This Note is subject to certain restrictions
on transfer or assignment as provided in the Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of Florida.
E-1
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[Signature page follows.]
E-2
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
XXXXXX SUPPLY, INC.
WITNESS:
By:__________________________________
_______________________________
Name:________________________________
_______________________________
Title:_______________________________
E-3
EXHIBIT F
---------
Form of Facility Guaranty
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of
September 13, 2000, is made by EACH OF THE UNDERSIGNED (each a "Guarantor" and
collectively the "Guarantors") to BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States (the
"Lender"). All capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement (as defined
below).
W I T N E S S E T H:
-------------------
WHEREAS, the Lender has agreed to provide to Xxxxxx Supply, Inc. (the
"Borrower") a short term revolving credit facility pursuant to the terms of that
certain Short Term Credit Agreement dated as of September 13, 2000, between the
Borrower and the Lender (as from time to time amended, modified, supplemented or
restated in accordance with its terms, the "Credit Agreement"); and
WHEREAS, each Guarantor is, directly or indirectly, a Material
Subsidiary of the Borrower and will materially benefit from the Loans and
Advances made and to be made under the Credit Agreement; and
WHEREAS, each Guarantor is required to enter into this Guaranty
Agreement pursuant to the terms of the Credit Agreement; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Lender was the obligation of the Borrower to cause each Guarantor to enter
into this Guaranty Agreement, and the Lender is unwilling to extend and maintain
the credit facilities provided under the Loan Documents unless the Guarantors
enter into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. Guaranty. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the
Lender the payment and performance in full of the Borrower's Liabilities (as
defined below). For all purposes of this Guaranty Agreement, "Borrower's
Liabilities" means: (a) the Borrower's prompt payment in full, when due or
declared due and at all such times, of all Obligations and all other amounts
pursuant to the terms of the Credit Agreement, the Note, and all other Loan
Documents heretofore, now or at any time or times hereafter owing, arising, due
or payable from the Borrower to the Lender, including principal, interest,
premiums and fees (including, but not limited to, loan fees and attorneys' fees
F-1
and expenses); (b) the Borrower's prompt, full and faithful performance,
observance and discharge of each and every agreement, undertaking, covenant and
provision to be performed, observed or discharged by the Borrower under the
Credit Agreement and all other Loan Documents; and (c) the Borrower's prompt
payment in full, when due or declared due and at all such times, of Rate Hedging
Obligations now or hereafter arising under Swap Agreements. The Guarantors'
obligations to the Lender under this Guaranty Agreement are hereinafter
collectively referred to as the "Guarantors' Obligations" and, with respect to
each Guarantor individually, the "Guarantor's Obligations". Notwithstanding the
foregoing, the liability of each Guarantor individually with respect to its
Guarantor's Obligations shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Borrower's Liabilities.
2. Payment. If the Borrower shall default in payment or performance of
any of the Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses), or
otherwise, when and as the same shall become due, and after expiration of any
applicable grace period, whether according to the terms of the Credit Agreement,
by acceleration, or otherwise, or upon the occurrence and during the continuance
of any Event of Default under the Credit Agreement, then any or all of the
Guarantors will, upon demand thereof by the Lender, fully pay to the Lender,
subject to any restriction on each Guarantor's Obligations set forth in Section
1 hereof, an amount equal to all the Borrower's Liabilities then due and owing.
3. Absolute Rights and Obligations. This is a guaranty of payment and
not of collection. The Guarantors' Obligations under this Guaranty Agreement
shall be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives, to the extent permitted by law, any defense
to its obligations under this Guaranty by reason of:
(a) any lack of legality, validity or enforceability of the
Credit Agreement, of the Note, of any other Loan Document, or of any
other agreement or instrument creating, providing security for, or
otherwise relating to any of the Guarantors' Obligations, any of the
Borrower's Liabilities, or any other guaranty of any of the Borrower's
Liabilities (the Loan Documents and all such other agreements and
instruments being collectively referred to as the "Related
Agreements");
(b) any action taken under any of the Related Agreements, any
exercise of any right or power therein conferred, any failure or
omission to enforce any right conferred thereby, or any waiver of any
covenant or condition therein provided;
(c) any acceleration of the maturity of any of the Borrower's
Liabilities, of the Guarantor's Obligations of any other Guarantor, or
of any other obligations or liabilities of any Person under any of the
Related Agreements;
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(d) any release, exchange, non-perfection, lapse in
perfection, disposal, deterioration in value, or impairment of any
security for any of the Borrower's Liabilities, for any of the
Guarantor's Obligations of any Guarantor, or for any other obligations
or liabilities of any Person under any of the Related Agreements;
(e) any dissolution of the Borrower or any Guarantor or any
other party to a Related Agreement, or the combination or consolidation
of the Borrower or any Guarantor or any other party to a Related
Agreement into or with another entity or any transfer or disposition of
any assets of the Borrower or any Guarantor or any other party to a
Related Agreement;
(f) any extension (including without limitation extensions of
time for payment), renewal, amendment, restructuring or restatement of,
and any acceptance of late or partial payments under, the Credit
Agreement, the Note or any other Loan Document or any other Related
Agreement, in whole or in part;
(g) the existence, addition, modification, termination,
reduction or impairment of value, or release of any other guaranty (or
security therefor) of the Borrower's Liabilities (including without
limitation the Guarantor's Obligations of any other Guarantor and
obligations arising under any other Facility Guaranty now or hereafter
in effect);
(h) any waiver of, forbearance or indulgence under, or other
consent to any change in or departure from any term or provision
contained in the Credit Agreement, any other Loan Document or any other
Related Agreement, including without limitation any term pertaining to
the payment or performance of any of the Borrower's Liabilities, any of
the Guarantor's Obligations of any other Guarantor, or any of the
obligations or liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice
to or knowledge of any Guarantor) which may or might in any manner or
to any extent vary the risks of such Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge of,
a surety or a guarantor, including without limitation any right to
require or claim that resort be had to the Borrower or any other Credit
Party or to any collateral in respect of the Borrower's Liabilities or
Guarantors' Obligations.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment as herein provided.
4. Currency and Funds of Payment. All Guarantors' Obligations will be
paid in lawful currency of the United States of America and in immediately
available funds, regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Borrower's Liabilities, or the rights
of the Lender with respect thereto as against the Borrower, or
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cause or permit to be invoked any alteration in the time, amount or manner of
payment by the Borrower of any or all of the Borrower's Liabilities.
5. Events of Default. Without limiting the provisions of Section 2
hereof, in the event that there shall occur and be continuing an Event of
Default, then notwithstanding any collateral or other security or credit support
for the Borrower's Liabilities, at the Lender's election and without notice
thereof or demand therefor, the Guarantors' Obligations shall immediately be and
become due and payable.
6. Subordination. Until this Guaranty Agreement is terminated in
accordance with Section 23 hereof, each Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations now or
hereafter owing to such Guarantor (i) of the Borrower, to the payment in full of
the Borrower's Liabilities, (ii) of every other Guarantor (an "obligated
guarantor"), to the payment in full of the Guarantors' Obligations of such
obligated guarantor, and (iii) of each other Person now or hereafter
constituting a Credit Party, to the payment in full of the obligations of such
Credit Party owing to the Lender. All amounts due under such subordinated debts,
liabilities, or obligations shall, upon the occurrence and during the
continuance of an Event of Default, be collected and, upon request by the
Lender, paid over forthwith to the Lender on account of the Borrower's
Liabilities, the Guarantors' Obligations, or such other obligations, as
applicable, and, after such request and pending such payment, shall be held by
such Guarantor as agent and bailee of the Lender separate and apart from all
other funds, property and accounts of such Guarantor.
7. Suits. Each Guarantor from time to time shall pay to the Lender, on
demand, at the Lender's place of business set forth in the Credit Agreement or
such other address as the Lender shall give notice of to such Guarantor, the
Guarantors' Obligations as they become or are declared due, and in the event
such payment is not made forthwith, the Lender may proceed to suit against any
one or more or all of the Guarantors. At the Lender's election, one or more and
successive or concurrent suits may be brought hereon by the Lender against any
one or more or all of the Guarantors, whether or not suit has been commenced
against the Borrower, any other Guarantor, or any other Person and whether or
not the Lender has taken or failed to take any other action to collect all or
any portion of the Borrower's Liabilities or have taken or failed to take any
actions against any collateral securing payment or performance of all or any
portion of the Borrower's Liabilities, and irrespective of any event,
occurrence, or condition described in Section 3 hereof.
8. Set-Off and Waiver. Each Guarantor waives any right to assert
against the Lender as a defense, counterclaim, set-off or cross claim, any
defense (legal or equitable) or other claim which such Guarantor may now or at
any time hereafter have against the Borrower or the Lender without waiving any
additional defenses, set-offs, counterclaims or other claims otherwise available
to such Guarantor. Each Guarantor agrees that the Lender shall have a lien for
all the Guarantor's Obligations upon all deposits or deposit accounts, of any
kind, or any interest in any deposits or deposit accounts, now or hereafter
pledged, mortgaged, transferred or assigned to the Lender or otherwise in the
possession or control of the Lender for any purpose (other than solely for
safekeeping) for the account or benefit of such Guarantor, including any
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balance of any deposit account or of any credit of such Guarantor with the
Lender, whether now existing or hereafter established, and hereby authorizes the
Lender from and after the occurrence of an Event of Default at any time or times
with or without prior notice to apply such balances or any part thereof to such
of the Guarantor's Obligations to the Lender then due and in such amounts as
provided for in the Credit Agreement or otherwise as they may elect. For the
purposes of this Section 8, all remittances and property shall be deemed to be
in the possession of the Lender as soon as the same may be put in transit to it
by mail or carrier or by other bailee.
9. Waiver of Notice; Subrogation.
(a) Each Guarantor hereby waives to the extent permitted by
law notice of the following events or occurrences: (i) acceptance of
this Guaranty Agreement; (ii) the Lender's heretofore, now or from time
to time hereafter making Loans and otherwise loaning monies or giving
or extending credit to or for the benefit of the Borrower, whether
pursuant to the Credit Agreement or the Note or any other Loan Document
or Related Agreement or any amendments, modifications, or supplements
thereto, or replacements or extensions thereof; (iii) presentment,
demand, default, non-payment, partial payment and protest; and (iv) any
other event, condition, or occurrence described in Section 3 hereof.
Each Guarantor agrees that the Lender may heretofore, now or at any
time hereafter do any or all of the foregoing in such manner, upon such
terms and at such times as the Lender, in its sole and absolute
discretion, deems advisable, without in any way or respect impairing,
affecting, reducing or releasing such Guarantor from its Guarantor's
Obligations, and each Guarantor hereby consents to each and all of the
foregoing events or occurrences.
(b) Each Guarantor hereby agrees that payment or performance
by such Guarantor of its Guarantor's Obligations under this Guaranty
Agreement may be enforced by the Lender upon demand by the Lender to
such Guarantor without the Lender being required, such Guarantor
expressly waiving to the extent permitted by law any right it may have
to require the Lender, to (i) prosecute collection or seek to enforce
or resort to any remedies against the Borrower or any other Guarantor
or any other guarantor of the Borrower's Liabilities, or (ii) seek to
enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to the Lender or other party
to a Related Agreement by the Borrower, any other Guarantor or any
other Person on account of the Borrower's Liabilities or any guaranty
thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY
SUCH GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY
THE LENDER, AND THE PROVISIONS HEREOF ENFORCED BY THE LENDER, EFFECTIVE
AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING
UNDER THE CREDIT AGREEMENT.
(c) Each Guarantor further agrees with respect to this
Guaranty Agreement that it shall have no right of subrogation,
reimbursement, contribution or indemnity, nor any right of recourse to
security for the Borrower's Liabilities unless and until 93 days
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immediately following the Facility Termination Date shall have elapsed
without the filing or commencement, by or against any Credit Party, of
any state or federal action, suit, petition or proceeding seeking any
reorganization, liquidation or other relief or arrangement in respect
of creditors of, or the appointment of a receiver, liquidator, trustee
or conservator in respect to, such Credit Party or its assets. This
waiver is expressly intended to prevent the existence of any claim in
respect to such subrogation, reimbursement, contribution or indemnity
by any Guarantor against the estate of any other Credit Party within
the meaning of Section 101 of the Bankruptcy Code, in the event of a
subsequent case involving any other Credit Party. If an amount shall be
paid to any Guarantor on account of such rights at any time prior to
termination of this Guaranty Agreement in accordance with the
provisions of Section 23 hereof, such amount shall be held in trust for
the benefit of the Lender and shall forthwith be paid to the Lender, to
be credited and applied upon the Guarantors' Obligations, whether
matured or unmatured, in accordance with the terms of the Credit
Agreement or otherwise as the Lender may elect. The agreements in this
subsection shall survive repayment of all of the Guarantors'
Obligations, the termination or expiration of this Guaranty Agreement
in any manner, including but not limited to termination in accordance
with Section 23 hereof, and occurrence of the Facility Termination
Date.
10. Effectiveness; Enforceability. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 23 hereof. Any claim or
claims that the Lender may at any time hereafter have against a Guarantor under
this Guaranty Agreement may be asserted by the Lender by written notice directed
to such Guarantor in accordance with Section 25 hereof.
11. Representations and Warranties. Each Guarantor warrants and
represents to the Lender that it is duly authorized to execute, deliver and
perform this Guaranty Agreement; that this Guaranty Agreement has been duly
executed and delivered on behalf of such Guarantor by its duly authorized
representatives; that this Guaranty Agreement is legal, valid, binding and
enforceable against such Guarantor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles; and that such Guarantor's
execution, delivery and performance of this Guaranty Agreement do not violate or
constitute a breach of any of its Operating Documents or Organizational
Documents, any agreement or instrument to which such Guarantor is a party, or
any law, order, regulation, decree or award of any governmental authority or
arbitral body to which it or its properties or operations is subject.
12. Expenses. Each Guarantor agrees to be jointly and severally liable
for the payment of all reasonable fees and expenses, including attorneys' fees,
incurred by the Lender in connection with the enforcement of this Guaranty
Agreement, whether or not suit be brought.
13. Reinstatement. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Lender in respect of any Borrower's Liabilities is
rescinded or must be restored for any reason, or
F-6
is repaid by the Lender in whole or in part in good faith settlement of any
pending or threatened avoidance claim.
14. Attorney-in-Fact. To the extent permitted by law, each Guarantor
hereby appoints the Lender as such Guarantor's attorney--in-fact for the
purposes of carrying out the provisions of this Guaranty Agreement and taking
any action and executing any instrument which the Lender may deem necessary or
advisable to accomplish the purposes hereof, which appointment is coupled with
an interest and is irrevocable; provided, that the Lender shall have and may
exercise rights under this power of attorney only upon the occurrence and during
the continuance of an Event of Default.
15. Reliance. Each Guarantor represents and warrants to the Lender
that: (a) such Guarantor has adequate means to obtain on a continuing basis (i)
from the Borrower, information concerning the Borrower and the Borrower's
financial condition and affairs and (ii) from other reliable sources, such other
information as it deems material in deciding to provide this Guaranty Agreement
("Other Information"), and has full and complete access to the Borrower's books
and records and to such Other Information; (b) such Guarantor is not relying on
the Lender or its or their employees, directors, agents or other representatives
or affiliates, to provide any such information, now or in the future; (c) such
Guarantor has been furnished with and reviewed the terms of the Credit Agreement
and such other Loan Documents as it has requested, is executing this Guaranty
Agreement freely and deliberately, and understands the obligations and financial
risk undertaken by providing this Guaranty Agreement; (d) such Guarantor has
relied solely on the Guarantor's own independent investigation, appraisal and
analysis of the Borrower, the Borrower's financial condition and affairs, the
"Other Information", and such other matters as it deems material in deciding to
provide this Guaranty Agreement and is fully aware of the same; and (e) such
Guarantor has not depended or relied on the Lender or its or their employees,
directors, agents or other representatives or affiliates, for any information
whatsoever concerning the Borrower or the Borrower's financial condition and
affairs or any other matters material to such Guarantor's decision to provide
this Guaranty Agreement, or for any counseling, guidance, or special
consideration or any promise therefor with respect to such decision. Each
Guarantor agrees that the Lender has no duty or responsibility whatsoever, now
or in the future, to provide to such Guarantor any information concerning the
Borrower or the Borrower's financial condition and affairs, or any Other
Information, other than as expressly provided herein, and that, if such
Guarantor receives any such information from the Lender or its employees,
directors, agents or other representatives or affiliates, such Guarantor will
independently verify the information and will not rely on the Lender or its
employees, directors, agents or other representatives or affiliates, with
respect to such information.
16. Rules of Interpretation. The rules of interpretation contained in
Sections 1.2(c) through 1.2(l) of the Credit Agreement shall be applicable to
this Guaranty Agreement and are hereby incorporated by reference. All
representations and warranties contained herein shall survive the delivery of
documents and any extension of credit referred to herein or guaranteed hereby.
F-7
17. Entire Agreement. This Guaranty Agreement, together with the Credit
Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements, understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Except as provided in Section 23, neither this Guaranty Agreement nor
any portion or provision hereof may be changed, altered, modified, supplemented,
discharged, canceled, terminated, or amended orally or in any manner other than
as provided in the Credit Agreement.
18. Binding Agreement; Assignment. This Guaranty Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective heirs, legal
representatives, successors and assigns; provided, however, that no Guarantor
shall be permitted to assign any of its rights, powers, duties or obligations
under this Guaranty Agreement or any other interest herein without the prior
written consent of the Lender. Without limiting the generality of the foregoing
sentence of this Section 18, the Lender may assign to one or more Persons, or
grant to one or more Persons participations in or to, all or any part of its
rights and obligations under the Credit Agreement (to the extent permitted by
the Credit Agreement); and to the extent of any such assignment or participation
such other Person shall, to the fullest extent permitted by law, thereupon
become vested with all the benefits in respect thereof granted to the Lender
herein or otherwise, subject however, to the provisions of the Credit Agreement,
including Section 12.1 thereof concerning assignments and participations. All
references herein to the Lender shall include any successor thereof.
19. Swap Agreements. All obligations of the Borrower under Swap
Agreements to which the Lender or its affiliates are a party shall be deemed to
be Borrower's Liabilities, and the Lender or affiliate of a Lender party to any
such Swap Agreement shall be deemed to be entitled to the guaranty hereunder
with respect to such Borrower's Liabilities.
20. Severability. The provisions of this Guaranty Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
21. Counterparts. This Guaranty Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Guaranty
Agreement to produce or account for more than one such counterpart executed by
the Guarantor against whom enforcement is sought.
22. Indemnification. Without limitation of Section 12.9 of the Credit
Agreement or any other indemnification provision in any Loan Document, each
Guarantor agrees to indemnify and hold harmless the Lender and each of its
affiliates and its respective officers, directors, employees, agents, and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable
F-8
attorneys' fees) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of defense in connection therewith) the
Loan Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans or other extension of credit under the
Loan Documents, except to the extent such claim, damage, loss, liability, cost,
or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 22 applies, such indemnity
shall be effective whether or not such investigation, litigation or proceeding
is brought by such Guarantor or any other Credit Party, any of their respective
directors, shareholders or creditors, or an Indemnified Party or any other
Person, or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. Each Guarantor agrees that
no Indemnified Party shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to it, any of its subsidiaries or affiliates, or
any security holders or creditors thereof arising out of, related to or in
connection with the transactions contemplated herein, except to the extent that
such liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified Party's
gross negligence or willful misconduct. Each Guarantor agrees not to assert any
claim against the Lender, any of its affiliates, or any of their directors,
officers, employees, attorneys, agents, or advisers, on any theory of liability,
for special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Loan Documents, any of the transactions contemplated
therein or the actual or proposed use of the proceeds of the Loans or other
extension of credit under the Loan Documents. The agreements in this Section 22
shall survive repayment of all of the Guarantors' Obligations and the
termination or expiration of this Guaranty Agreement in any manner, including
but not limited to termination upon occurrence of the Facility Termination Date.
23. Termination. Subject to reinstatement pursuant to Section 13
hereof, this Guaranty Agreement and all of the Guarantors' Obligations hereunder
(excluding those obligations and liabilities that expressly survive such
termination) shall terminate on the Facility Termination Date.
24. Remedies Cumulative; Late Payments. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the Lender
provided by law or under the Credit Agreement, the other Loan Documents or other
applicable agreements or instruments. The making of the Loans and other
extensions of credit to the Borrower pursuant to the Credit Agreement shall be
conclusively presumed to have been made or extended, respectively, in reliance
upon each Guarantor's guaranty of the Borrower's Liabilities pursuant to the
terms hereof. Any amounts not paid when due under this Guaranty Agreement shall
bear interest at the Default Rate.
25. Notices. Any notice required or permitted hereunder shall be given,
(a) with respect to each Guarantor, at the address of the Borrower indicated in
Section 10.2 of the Credit Agreement and (b) with respect to the Lender, at the
Lender's address indicated in Section 10.2 of
F-9
the Credit Agreement. All such addresses may be modified, and all such notices
shall be given and shall be effective, as provided in Section 10.2 of the Credit
Agreement.
26. Governing Law; Venue; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE,
NOTWITHSTANDING ITS EXECUTION OUTSIDE OF SUCH STATE.
(b) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF DADE,
STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, SUCH GUARANTOR EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN,
OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH GUARANTOR
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS FOR NOTICES TO SUCH
GUARANTOR IN EFFECT PURSUANT TO SECTION 25 HEREOF, OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) or (c) HEREOF SHALL
PRECLUDE THE LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE ANY GUARANTOR OR ANY OF SUCH GUARANTOR'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE
APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF
F-10
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS
WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION THEREWITH, EACH GUARANTOR AND THE LENDER ON
BEHALF OF THE LENDER HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY
HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(f) EACH GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT
MAY HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT
TO THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signature page follows.]
F-11
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTORS:
ALLIED METALS, INC.
ATLANTIC PUMP & EQUIPMENT SUPPLY
COMPANY OF MIAMI, INC.
ATLANTIC PUMP & EQUIPMENT SUPPLY
COMPANY OF WEST PALM BEACH, INC.
CAROLINA PUMP & SUPPLY CORP.
CAYESTEEL, INC.
CF FLUID CONTROLS, INC.
XXXX SUPPLY, INC.
COASTAL WHOLESALE, INC.
DOMINION PIPE & SUPPLY CO.
DOMINION PIPE FABRICATORS,
INCORPORATED
XXXXXXX XXXXXXXXX & ASSOCIATES, INC.
ELASCO AGENCY SALES, INC.
ELEC-TEL SUPPLY COMPANY
ELECTRIC LABORATORIES AND SALES
CORPORATION
FES MERGER CORP., INC.
FIRST NATIONAL FIXTURE CORPORATION
XXXXX SUPPLY COMPANY, INC.
XXXXXXXXX CONCRETE PRODUCTS, INC.
GPEC, INC.
HHH, INC.
HSI ACQUISITION CORPORATION
HSI BESTROUTE INVESTMENT, INC.
HSI CORP
HSI FUSION SERVICES, INC.
XXXXXX SUPPLY FOUNDATION, INC.
XXXXXX SUPPLY FSC, INC.
XXXXXX SUPPLY MANAGEMENT SERVICES,
INC.
HUGHES WATER & SEWER COMPANY
H VENTURE CORP.
INTERNATIONAL SUPPLY COMPANY
J&J, INC.
JUNO INDUSTRIES, INC.
KAMEN SUPPLY COMPANY, INC.
L&T OF DELAWARE, INC.
MEREX CORPORATION
F-12
WITNESS:
By:_______________________________________
____________________________ Name: __________________________________
Title: _________________________________
____________________________
LENDER:
BANK OF AMERICA, N.A.
By:
Name: _________________________________
Title: _________________________________
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Schedule 6.1
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Organization and Ownership of Subsidiaries
S-1
