______________________________________________________________________________
AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
GIANT CEMENT HOLDING, INC.
and
EACH OF THE UNDERSIGNED SUBSIDIARIES
as Borrowers
and
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
as Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
April 21, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1 Amendment and Restatement........................................2
1.2 Definitions......................................................2
1.3 Accounting Terms................................................21
1.4 UCC Terms.......................................................21
ARTICLE II
The Revolving Credit Facility
2.1 Revolving Loans.................................................21
2.2 Payment of Interest.............................................23
2.3 Payment of Principal............................................24
2.4 Revolving Credit Notes..........................................25
2.7 Pro Rata Payments...............................................26
2.8 Reductions......................................................26
2.9 Conversions.....................................................27
2.10 Fee.............................................................27
2.11 Deficiency Advances.............................................27
2.12 Use of Proceeds.................................................28
2.13 Extension of Revolving Credit Termination Date..................28
2.14 Appointment of Giant Holding and Authorized Representatives as Agents
for the Borrowers...............................................28
ARTICLE III
The Term Loan Facility
3.1 Term Loan.......................................................29
3.2 Term Loan Advances..............................................29
3.3 Payment of Interest.............................................29
3.4 Payment of Principal............................................30
3.5 Use of Proceeds. ...............................................31
3.6 Term Notes......................................................31
3.7 Prepayment of Term Loan.........................................31
3.8 Conversions and Elections of Subsequent Interest ...............32
i
ARTICLE IV
The Letter of Credit Facility
4.1 Letters of Credit...............................................33
4.2 Reimbursement...................................................33
4.3 Letter of Credit Fee............................................36
4.4 Administrative Fees. ..........................................36
ARTICLE V
Yield Protection and Illegality
5.1 Additional Costs.................................................36
5.2 Suspension of Loans..............................................38
5.3 Illegality.......................................................39
5.4 Compensation.....................................................39
5.5 Alternate Loan and Lender........................................39
5.6 Taxes............................................................40
ARTICLE VI
Conditions Precedent
6.1 Conditions of Initial Advance and Issuance of Letters of Credit..41
6.2 Conditions of Loans and Issuance of Letters of Credit............44
ARTICLE VII
Representations and Warranties
7.1 Organization and Authority.......................................45
7.2 Loan Documents...................................................45
7.3 Solvency.........................................................46
7.4 Subsidiaries and Stockholders....................................46
7.5 Ownership Interests..............................................46
7.6 Financial Condition..............................................46
7.7 Title to Properties..............................................46
7.8 Taxes............................................................47
7.9 Other Agreements.................................................47
7.10 Litigation.......................................................47
7.11 Margin Stock.....................................................47
7.12 Investment Company...............................................47
7.13 Patents, Etc.....................................................48
7.14 No Untrue Statement..............................................48
7.15 No Consents, Etc.................................................48
ii
7.16 Employee Benefit Plans...........................................48
7.17 No Default.......................................................49
7.18 Hazardous Materials..............................................49
7.19 RICO.............................................................49
7.20 Employment Matters...............................................50
ARTICLE VIII
Affirmative Covenants
8.1 Financial Reports, Etc...........................................50
8.2 Maintain Properties..............................................51
8.3 Existence, Qualification, Etc....................................52
8.4 Regulations and Taxes............................................52
8.5 Insurance........................................................52
8.6 True Books.......................................................52
8.7 Pay Indebtedness to Lenders and Perform Other Covenants..........52
8.8 Payment of Other Indebtedness....................................52
8.9 Right of Inspection..............................................52
8.10 Observe all Laws.................................................53
8.11 Officer's Knowledge of Default...................................53
8.12 Suits or Other Proceedings.......................................53
8.13 Environmental Compliance.........................................53
8.14 Indemnification..................................................53
8.15 Further Assurances...............................................53
8.16 Employee Benefit Plans...........................................53
8.17 Termination Events...............................................54
8.18 ERISA Notices....................................................54
8.19 Continued Operations.............................................54
8.20 Use of Proceeds..................................................54
8.21 New Subsidiaries.................................................54
ARTICLE IX
Negative Covenants
9.1 Consolidated Indebtedness for Money Borrowed to Consolidated
Tangible Net Worth Ratio.........................................55
9.2 Consolidated Fixed Charge Ratio..................................55
9.3 Current Ratio....................................................56
9.4 Capital Expenditures.............................................56
9.5 Consolidated Tangible Net Worth..................................56
9.6 Liens............................................................56
9.7 Consolidated Indebtedness........................................57
9.8 Transfer of Assets...............................................58
9.9 Investments; Acquisitions. .....................................58
iii
9.10 Merger or Consolidation..........................................59
9.11 Change in Control................................................59
9.12 Transactions with Affiliates.....................................60
9.13 Compliance with ERISA............................................60
9.14 Fiscal Year......................................................61
9.15 Limitations on Sales and Leasebacks..............................61
9.16 Negative Pledge Clauses..........................................61
ARTICLE X
Events of Default and Acceleration
10.1 Events of Default................................................61
10.2 Agent to Act.....................................................64
10.3 Cumulative Rights................................................64
10.4 No Waiver........................................................64
10.5 Allocation of Proceeds...........................................65
ARTICLE XI
The Agent
11.1 Appointment......................................................65
11.2 Attorneys-in-fact................................................65
11.3 Limitation on Liability..........................................66
11.4 Reliance.........................................................66
11.5 No Representations...............................................66
11.6 Indemnification..................................................67
11.7 Lender...........................................................67
11.8 Resignation......................................................67
11.9 Sharing of Payments, etc.........................................68
11.10 Fees.............................................................68
ARTICLE XII
Miscellaneous
12.1 Confidentiality. ...............................................68
12.2 Assignments and Participations...................................69
12.3 Notices..........................................................71
12.4 Setoff...........................................................72
12.5 Survival.........................................................72
12.6 Expenses.........................................................73
12.7 Amendments.......................................................73
12.8 Counterparts.....................................................74
12.9 Termination......................................................74
iv
12.10 Governing Law....................................................75
12.11 Indemnification..................................................76
12.12 Headings and References..........................................76
12.13 Severability. ..................................................76
12.14 Entire Agreement.................................................76
12.15 Agreement Controls...............................................77
12.16 Usury Savings Clause.............................................77
12.17 Joint and Several Obligations....................................77
EXHIBIT A Applicable Commitment Percentages.....................A-1
EXHIBIT B Form of Assignment and Acceptance.....................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative........................................C-1
EXHIBIT D Request for Advance/Interest Rate Election............D-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans..........D-2-1
EXHIBIT E Form of Revolving Note................................E-1
EXHIBIT F Form of Term Note.....................................F-1
EXHIBIT F-2 Form of Swing Line Note.............................F-2-1
EXHIBIT G Form of Amended and Restated Security Agreement.......G-1
EXHIBIT H Compliance Certificate................................I-1
Schedule 1.1 Existing Letters of Credit
Schedule 7.5 Ownership Interests
Schedule 7.6 Indebtedness
Schedule 7.7 Liens
Schedule 7.16 Employee Benefit Plans
Schedule 7.18 Hazardous Materials
Schedule 7.20 Employment Matters
Schedule 9.9 Investments
Amended and Restated Credit Agreement
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 21, 1999
(the "Agreement"), is made by and among GIANT CEMENT HOLDING, INC., a Delaware
corporation ("Giant Holding"), EACH OF THE UNDERSIGNED SUBSIDIARIES (together
with Giant Holding, each referred to individually herein as a "Borrower"
and collectively as the "Borrowers"), SOUTHTRUST BANK, NATIONAL ASSOCIATION, a
national banking association organized under the laws of the United States
previously known as SouthTrust Bank of Alabama, National Association, in its
capacity as a Lender, and each other lender executing and delivering a signature
page hereto and each other lender which may hereafter execute and deliver an
instrument of assignment with respect to this Agreement pursuant to Section 12.1
hereof (hereinafter such lenders may be referred to individually as a "Lender"
or collectively as the "Lenders"), and SOUTHTRUST BANK, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United
States of America ("SouthTrust"), in its capacity as agent for the Lenders (in
such capacity, and any successor appointed in accordance with the terms of
Section 11.8 hereof, the "Agent");
W I T N E S S E T H:
WHEREAS, each of the Borrowers, the Lender, and the Agent have entered
into an Amended and Restated Credit Agreement dated as of April 30, 1998 as
amended by Amendment No. 1 to the Amended and Restated Credit Agreement dated
February 19, 1999 and as amended by Amendment No. 2 to Amended and Restated
Credit Agreement ("Amendment No. 2") dated as of the date hereof and effective
prior hereto (as amended, the "Existing Agreement"), pursuant to which the
Lender has made available to the Borrowers a revolving credit facility of up to
$40,000,000 in maximum aggregate principal amount at any time outstanding, a
term loan facility of $25,000,000 and a letter of credit facility of up to
$5,500,000 in maximum stated amount at any time outstanding; and
WHEREAS, each of the Lenders, other than SouthTrust in its capacity as
Lender, have entered into Assignment and Acceptance Agreements with SouthTrust
on the date hereof effective immediately prior hereto and thereby became Lenders
under the Existing Agreement;
WHEREAS, the Borrowers have requested that the Agent and the Lenders
amend and restate the Existing Agreement in its entirety in the manner set forth
herein; and
WHEREAS, the Lenders are willing to amend and restate the Existing
Agreement and to make available to the Borrowers certain term loan, revolving
credit, swing line and letter of credit facilities upon the terms and conditions
set forth herein;
NOW, THEREFORE, each of the Borrowers, the Lenders and the Agent hereby
agree as follows:
ARTICLE 1
Definitions and Terms
1.1 Amendment and Restatement. The Borrowers, the Agent and the
Lenders hereby agree that upon the effectiveness of this Agreement, the terms
and provisions of the Existing Agreement shall be and hereby are amended and
restated in their entirety by the terms and conditions of this Agreement and the
terms and provisions of the Existing Agreement, except as otherwise provided
herein, shall be superseded by this Agreement.
Notwithstanding the amendment and restatement of the Existing Agreement
by this Agreement, the Borrowers shall continue to be liable to the Agent and
the Lenders with respect to (and to the extent of) agreements on the part of the
Borrowers under the Existing Agreement to indemnify and hold harmless the Agent
and the Lenders from and against all claims, demands, liabilities, damages,
losses, costs, charges and expenses to which the Agent and the Lenders may be
subject arising in connection with the Existing Agreement. This Agreement is
given as a substitution of, and not as a payment of, the obligations of
Borrowers under the Existing Agreement and is not intended to constitute a
novation of the Existing Agreement. Except as otherwise selected by the
Borrowers by delivery of a Borrowing Notice or Interest Rate Selection Notice
prior to the Closing Date in accordance with the terms hereof, upon the
effectiveness of this Agreement all amounts outstanding and owing by Borrowers
under the Existing Agreement as of the Closing Date, as determined by the
Lenders, shall constitute Base Rate Loans hereunder if such outstanding amounts
were Base Rate Loans under the Existing Agreement, and shall constitute
Eurodollar Rate Loans hereunder if such outstanding amounts were Eurodollar Rate
Loans under the Existing Agreement. Except as otherwise provided for by the
Borrowers by delivery to the Agent of an Application and Agreement for Letters
of Credit prior to the Closing Date in accordance with the terms hereof, upon
the effectiveness of this Agreement, all Letters of Credit issued for the
account of the Borrowers under the Existing Agreement as of the Closing Date
shall constitute Letters of Credit hereunder.
1.2 Definitions. For the purposes of this Agreement, in addition
to the definitions set forth above, the following terms shall have the
respective meanings set forth below:
"Accounts" means all Accounts of the Borrowers as defined in the
Security Agreement;
"Account Debtor" means any Person who is or who may become
obligated to any Borrower under or on account of an Account;
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person for which the Cost of
Acquisition equals or exceeds $1,000,000;
2
"Advance" means any borrowing under (i) the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan or
(ii) the Term Loan Facility consisting of a Base Rate Segment or a
Eurodollar Rate Segment, as the case may be;
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with, any Borrower; (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock (or
in the case of a Person which is not a corporation, 10% or more of the
equity interest) of any Borrower; or (iii) 10% or more of any class of
the outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by any Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise;
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, a fraction, the numerator of which shall be the sum
of such Lender's Revolving Credit Commitment, Term Loan Commitment and
Letter of Credit Commitment at such time and the denominator of which
shall be the sum of the Total Revolving Credit Commitment, Total Term
Loan Commitment and the Total Letter of Credit Commitment at such time,
which Applicable Commitment Percentage for each Lender as of the
Closing Date is as set forth in Exhibit A attached hereto and
incorporated herein by reference; provided that the Applicable
Commitment Percentage of each Lender shall be increased or decreased to
reflect any assignments to or by such Lender effected in accordance
with Section 12.1 hereof;
"Applicable Margin" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
Consolidated Leverage
Tier Ratio Applicable Margin
I Greater than 2.50 to 1.00 1.70%
II Greater than 2.00 to 1.00 1.50%
but less than or equal to
2.50 to 1.00
III Greater than .75 to 1.00 1.40%
but less than or equal to
2.00 to 1.00
IV Less than or equal to .75 1.30%
to 1.00
3
The Applicable Margin shall be established at the end of each
fiscal quarter of the Borrower (each, a "Determination Date"). Any
change in the Applicable Margin following each Determination Date shall
be determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to Section 8.1(a)(ii) and Section
8.1(b)(ii), subject to review and approval of such computations by the
Agent, and shall be effective commencing on the fifth Business Day
following the date such certificate is received until the fifth
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur; provided
however, if the Borrower shall fail to deliver any such certificate
within the time period required by Section 8.1, then the Applicable
Margin shall be Tier I until the appropriate certificate is so
delivered. From the Closing Date to the first Determination Date, the
Applicable Margin shall be Tier III.
"Applicable Unused Fee" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the Four-Quarter Period most recently ended as specified below:
Consolidated Leverage Applicable Unused Fee
Tier Ratio Eurodollar Rate
I Greater than 2.50 to 1.00 .30%
II Greater than 2.00 to 1.00 .25%
but less than or equal to
2.50 to 1.00
III Greater than .75 to 1.00 but .20%
less than or equal to 2.00
to 1.00
IV Less than or equal to .75 to 1.00 .15%
The Applicable Unused Fee shall be established at the end of each
fiscal quarter of the Borrower (each, a "Determination Date"). Any
change in the Applicable Unused Fee following each Determination Date
shall be determined based upon the computations set forth in the
certificate furnished to the Agent pursuant to Section 8.1(a)(ii) and
Section 8.1(b)(ii), subject to review and approval of such computations
by the Agent, and shall be effective commencing on the fifth Business
Day following the date such certificate is received until the fifth
Business Day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur; provided
however, if the Borrower shall fail to deliver any such certificate
within the time period required by Section 8.1, then the Applicable
Unused Fee shall be Tier I until the appropriate certificate is so
delivered. From the Closing Date to the first Determination Date, the
Applicable Unused Fee shall be Tier III.
4
"Applications for Letters of Credit" means, collectively, the
applications for letters of credit in the form provided by the Issuing
Bank and executed by the Borrowers from time to time and delivered to
Issuing Bank to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 12.1 hereof;
"Authorized Representative" means the President or Vice
President of Giant Holding or, with respect to financial matters, the
chief financial officer or treasurer of Giant Holding or any other
person expressly designated by the Board of Directors (or the
appropriate committee thereof) of each Borrower as an Authorized
Representative of all Borrowers, as set forth from time to time in a
certificate in the form attached hereto as Exhibit C;
"Base Rate" means the per annum rate of interest established
from time to time by SouthTrust at its principal office as its Base
Rate. Any change in the Base Rate shall become effective as of 12:01
A.M. of the Business Day on which each change in the Base Rate is
announced by SouthTrust. The Base Rate is a reference rate used by
SouthTrust in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged on any extension of
credit to any debtor;
"Base Rate Loan" means a Loan or Segment, as the case may be
or the context may require, for which the rate of interest is
determined by reference to the Base Rate;
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit or (ii) pay SouthTrust in
respect of Swing Line Outstandings.
"Base Rate Segment" means a Segment bearing interest or to
bear interest at the Base Rate;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrowers' Account" means a demand deposit account number
00000000 with SouthTrust Bank of South Carolina, N.A., or any successor
account with the Agent or an affiliate, which may be maintained at one
or more offices of the Agent or an agent of the Agent;
"Business Day" means, (i) with respect to any Base Rate Loan,
any day which is not a Saturday, Sunday or a day on which banks in the
State of Alabama are authorized or obligated by law, executive order or
governmental decree to be closed and, (ii) with respect to any
Eurodollar Rate Loan and Floating Eurodollar Rate Swing Line Loans, 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 Birmingham, Alabama;
5
"Capital Expenditures" means, with respect to the Borrowers,
for any period, expenditures or costs in connection with Capital Leases
and costs for fixed or capital assets or improvements made by any
Borrower during such period which in accordance with GAAP applied on a
Consistent Basis are characterized as capital expenditures;
"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 each of the Borrowers, the Lenders and the Agent and on
which the conditions set forth in Section 6.1 hereof have been
satisfied;
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder;
"Collateral" has, collectively, the meaning given to such
term in each Security Instrument in which it may appear;
"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 audited consolidated financial statements of the Borrowers
referred to in Section 7.6(a) hereof;
"Consolidated Current Assets" means all items that would be
classified as current assets on a consolidated balance sheet of the
Borrowers in accordance with GAAP applied on a Consistent Basis;
"Consolidated Current Liabilities" means all items that would
be classified as current liabilities on a consolidated balance sheet of
the Borrowers, including all current maturities of long term
Consolidated Indebtedness for Money Borrowed, in accordance with GAAP
applied on a Consistent Basis;
"Consolidated EBITDA" means, with respect to the Borrowers for
any period of computation thereof, the sum of, without duplication, (i)
Consolidated Net Income during such period, plus (ii) Consolidated
Interest Expense accrued during such period, plus (iii) taxes on income
accrued during such period, plus (iv) amortization during such period,
plus (v) Depreciation during such period, all determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis;
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrowers for the period of computation thereof, the ratio of (i)
Consolidated EBITDA for such period plus Consolidated Lease Expense for
such period, to (ii) Consolidated Fixed Charges for such period;
6
"Consolidated Fixed Charges" means, with respect to the
Borrowers for any period of computation thereof, the sum of, without
duplication, (i) Consolidated Interest Expense during such period, plus
(ii) Consolidated Lease Expense during such period, plus (iii) current
maturities of Consolidated Indebtedness for Money Borrowed actually
paid during such period, all determined in accordance with GAAP applied
on a Consistent Basis;
"Consolidated Indebtedness" means, as of any date on
which the amount thereof is to be determined, all Indebtedness of
the Borrowers as determined on a consolidated basis;
"Consolidated Indebtedness for Money Borrowed" means, as of
any date on which the amount thereof is to be determined, all
Indebtedness for Money Borrowed of the Borrowers, excluding for
purposes of Section 9.1 the undrawn amount of letters of credit, as
determined on a consolidated basis;
"Consolidated Interest Expense" means, for any period of
computation thereof, the gross interest expense of the Borrowers,
including without limitation (i) the current amortized portion of debt
discounts to the extent included in gross interest expense, (ii) the
current amortized portion of all fees (including, without limitation,
fees payable in respect of a Swap Agreement) payable in connection with
the incurrence of Consolidated Indebtedness to the extent included in
gross interest expense and (iii) the portion of any payments made in
connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis;
"Consolidated Lease Expense" means, for any period of
computation thereof, all amounts paid or accrued by the Borrowers
during such period under operating leases (whether or not constituting
rental expense), as determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis;
"Consolidated Leverage Ratio" means, with respect to the
Borrowers for any Four-Quarter Period of computation thereof, the ratio
of (i) Consolidated Indebtedness for Money Borrowed as of the last day
of such Four-Quarter Period to (ii) Consolidated EBITDA for such
Four-Quarter Period;
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrowers (including
payments received by the Borrowers of interest income and dividends and
distributions from investments not related to an extraordinary event)
less all operating and non-operating expenses of the Borrowers all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis; but excluding as income for all purposes other than
the computations required under Section 9.5(ii)(B) the aggregate amount
of all of the following in excess of $500,000: (i) net gains on the
sale, conversion or other disposition of capital assets, (ii) net gains
on the acquisition, retirement, sale or other disposition of capital
stock and other securities of any Borrower, (iii) net gains on the
collection of proceeds of life insurance policies, (iv) any write-up of
any asset, and (v) any other net gain or credit of an extraordinary
nature, all determined in accordance with GAAP applied on a Consistent
Basis;
7
"Consolidated Shareholders' Equity" means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of the Borrowers (excluding any upward adjustment after the
Closing Date due to revaluation of assets): (i) the amount of issued
and outstanding share capital, plus (ii) the amount of additional
paid-in capital and retained earnings (or, in the case of a deficit,
minus the amount of such deficit), plus (iii) the amount of any foreign
currency translation adjustment (if positive, or, if negative, minus
the amount of such translation adjustment), minus (iv) the amount of
any treasury stock, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis;
"Consolidated Tangible Net Worth" means, with respect to the
Borrowers as of any date on which the amount thereof is to be
determined, Consolidated Shareholders' Equity minus the net book value
of all assets of the Borrowers which would be treated as intangible
assets determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis;
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the financial statements
(including footnotes) of such Person in accordance with GAAP applied on
a Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including obligations of such
Person however incurred:
(1) to purchase such Indebtedness or other
obligation or any property or assets constituting security
therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof;
8
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of any Borrower to be
transferred in connection therewith, (ii) any cash or other property
(excluding property described in clause (i)) and the unpaid principal
amount of any debt instrument given as consideration, (iii) any
Indebtedness assumed by any Borrower in connection with such
Acquisition, and (iv) out of pocket transaction costs for the services
and expenses of attorneys, accountants and other consultants incurred
in effecting such a transaction, and other similar transaction costs so
incurred. For purposes of determining the Cost of Acquisition for any
transaction, (A) the capital stock of Giant Holding shall be valued (I)
at its market value as reported on the Nasdaq National Market System
with respect to shares that are freely tradeable, and (II) with respect
to shares that are not freely tradeable, as determined by the Board of
Directors of Giant Holding and, if requested by the Agent, determined
to be a reasonable valuation by an independent firm selected by the
Agent, (B) the capital stock of any Borrower other than Giant Holding
shall be valued as determined by the Board of Directors of such
Borrower and, if requested by the Agent, determined to be a reasonable
valuation by an independent firm selected by the Agent, and (C) with
respect to any Acquisition accomplished pursuant to the exercise of
options or warrants or the conversion of securities, the Cost of
Acquisition shall include both the cost of acquiring such option,
warrant or convertible security as well as the cost of exercise or
conversion;
"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;
"Depreciation" means, with respect to the Borrowers for any
period of computation thereof, the aggregate amount of depreciation
accrued during such period as determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis;
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(i) direct obligations of, or obligations the timely
payment of principal and interest on which are fully and
unconditionally guaranteed by, the United States of America;
(ii) obligations of any corporation organized under the
laws of any state of the United States or under the laws of
any other nation, payable in the United States, expressed to
mature not later than 90 days following the date of issuance
thereof and rated in an investment grade rating category by
Standard & Poor's Corporation and Xxxxx'x Investors Service,
Inc.; and
9
(iii) interest bearing demand or time deposits issued by
any Lender or certificates of deposit, bankers acceptances and
other "money market instruments" maturing within one hundred
eighty (180) days from the date of issuance thereof and issued
by a bank or trust company organized under the laws of the
United States or of any state thereof having capital surplus
and undivided profits aggregating at least $1,000,000;
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (a) is maintained for
employees of any Borrower or is assumed by any Borrower in connection
with any acquisition or any of its ERISA Affiliates or (b) has at any
time been maintained for the employees of any Borrower or any current
or former ERISA Affiliate;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act, as
amended, any other "Superfund" or "Superlien" law or any other federal,
or applicable state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any Hazardous Material;
"Equipment" means all Equipment, as defined in the Security
Agreement, of Keystone Cement Company and Giant Cement Company;
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder;
"ERISA Affiliate", as applied to any Borrower, means any
Person or trade or business which is a member of a group which is under
common control with such Borrower, who together with such Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code;
"Eurodollar Rate Loan" means a Loan or Segment, as the case
may be or the context may require, for which the rate of interest is
determined by reference to the Eurodollar Rate; provided, however,
Floating Eurodollar Rate Swing Line Loans shall not constitute
Eurodollar Rate Loans;
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable Margin
Rate 1- Eurodollar Reserve Percentage
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"Eurodollar Rate Segment" means a Segment bearing interest
or to bear interest at the Eurodollar Rate;
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time or any successor regulation, as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by reference to
which the interest rate of Eurodollar Rate Loans is determined),
whether or not the Agent has any Eurocurrency liabilities subject to
such requirements without benefits of credits or proration, exceptions
or offsets that may be available from time to time to Agent. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve Percentage;
"Event of Default" means any of the occurrences set forth as
such in Section 10.1 hereof;
"Existing Letters of Credit" means those Letters of Credit
issued by the Issuing Bank described on Schedule 1.1 hereto;
"Facilities" means the Revolving Credit Facility, the Term
Loan Facility and the Letter of Credit Facility;
"Facility Termination Date" means the date on which the
Revolving Credit Termination Date and the Term Loan Termination Date
shall have occurred and the Borrowers shall have fully paid and
satisfied all Obligations and no Letter of Credit is outstanding;
"Fiscal Year" means the fiscal year of the Borrowers ending on
each December 31;
"Floating Eurodollar Rate" means, as of each Business Day, the
Eurodollar Rate for a one month Interest Period commencing on such
Business Day, as determined for each Business Day on which a Swing Line
Loan is outstanding that bears interest at the Floating Eurodollar
Rate.
"Floating Eurodollar Rate Swing Line Loan" means a Swing Line
Loan that bears interest at the Floating Eurodollar Rate.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan;
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrowers, taken together as one accounting
period;
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"GAAP" 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, as such principles are from time to time supplemented
and amended;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether a state of the United
States, the United States or foreign;
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material, the generation, handling,
storage, disposal, treatment or emission of which is subject to any
Environmental Law;
"Indebtedness" means with respect to any Person, (i) all
Indebtedness for Money Borrowed, (ii) the undrawn face amount of, and
unpaid Reimbursement Obligations in respect of, all letters of credit
issued for the account of such Person; (iii) all indebtedness of such
Person for the acquisition of property, (iv) all indebtedness secured
by any Lien on the property of such Person whether or not such
indebtedness is assumed, (v) all liability of such Person by way of
endorsements (other than for collection or deposit in the ordinary
course of business), (vi) all Contingent Obligations, (vii) all Rate
Hedging Obligations and (viii) that portion of obligations with respect
to Capital Leases and each other item which in accordance with GAAP is
classified as a liability on a balance sheet; provided that in no event
shall the term Indebtedness include surplus and retained earnings,
lease obligations (other than pursuant to Capital Leases), reserves for
deferred income taxes and investment credits, other deferred credits
and reserves, trade payables, accrued expenses and deferred
compensation obligations and trade payables and accrued expenses
incurred in the ordinary course of business;
"Indebtedness for Money Borrowed" means with respect to any
Person determined on a consolidated basis, all Indebtedness in respect
of money borrowed, including without limitation all Capital Leases and
the deferred purchase price of any property or asset, evidenced by a
promissory note, bond, debenture or similar written obligation for the
payment of money, 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 or Floating Eurodollar Rate Swing Line Loan for the Interest
Period applicable thereto, the average (rounded upward to the nearest
one-sixteenth (1/16) of one percent) per annum rate of interest
determined by the office of the Agent then determining such rate (each
such determination to be conclusive and binding) as of three Business
Days prior to the first day of such Interest Period, as the effective
rate at which deposits in immediately available funds in Dollars are
being, have been, or would be offered or quoted by Agent to major banks
12
in the applicable interbank market for Eurodollar deposits at any time
during the Business Day which is the second Business Day immediately
preceding the first day of such Interest Period, for a term comparable
to such Interest Period and in the amount of the Eurodollar Rate Loan;
"Interest Period" for each Eurodollar Rate Loan means a period
commencing on the date such Eurodollar Rate Loan is made or converted
and each subsequent period commencing on the last day of the
immediately preceding Interest Period for such Eurodollar Rate Loan,
and ending on the date 30, 60 or 90 days thereafter either as notified
to the Agent by the Authorized Representative three (3) Business Days
prior to the beginning of such Interest Period by delivery of a Request
for Advance/Interest Rate Election or as otherwise determined in
accordance with Section 2.1(d)(iii) hereof; provided, that,
(i) 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; and
(ii)there shall not be more than five (5) Interest
Periods in effect on any day;
"Inventory" means all Inventory of the Borrowers as defined in
the Security Agreement;
"Issuing Bank" means SouthTrust Bank, National Association, or
any successor or replacement bank, as issuer of Letters of Credit in
accordance with Article IV hereof;
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify
to the Authorized Representative and the Agent as the office by which
its Loans are to be made and maintained;
"Letter of Credit" means the Existing Letters of Credit and
any Standby Letter of Credit issued by Issuing Bank for the account of
the Borrowers as described in Article IV hereof;
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Participations up to
an aggregate stated amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement;
"Letter of Credit Facility" means the facilities described in
Article IV hereof providing for the issuance by Issuing Bank for the
account of the Borrowers of Letters of Credit in an aggregate stated
13
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment;
"Letter of Credit Outstandings" means all undrawn amounts
of Letters of Credit plus Reimbursement Obligations;
"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 purposes of this definition, any Borrower shall be deemed
to be the owner of any property which it has acquired or holds subject
to a conditional sale agreement, financing lease, or other arrangement
pursuant to which title to the property has been retained by or vested
in some other Person for security purposes;
"Loan" or "Loans" means, the Swing Line Loan, the Revolving
Loans or the Term Loan;
"Loan Documents" means this Agreement, the Notes, the
Subordination Agreement, the Security Instruments and all other
instruments and documents heretofore or hereafter executed or delivered
to or in favor of any Lender or the Agent in connection with the Loans
made and transactions contemplated under this Agreement, as the same
may be amended, supplemented or replaced from the time to time;
"Material Adverse Effect" means a material adverse effect (a)
on the business, properties, operations or condition, financial or
otherwise, of the Borrowers on a consolidated basis or (b) on the
ability of the Borrowers on a consolidated basis to perform, or of the
Agent to enforce, or of the Lenders to realize the benefits to be
afforded by any remedy after default of, the obligations of the
Borrowers under the Loan Documents;
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrowers or any ERISA
Affiliate are making, or are accruing an obligation to make,
contributions or have made, or been obligated to make, contributions
within the preceding six (6) years;
"Net Proceeds" (a) from any public or private offering of
equity or debt securities means cash payments received by a Borrower
therefrom as and when received, net of all legal, accounting, banking
and underwriting fees and expenses, commissions, discounts and other
issuance expenses incurred in connection therewith and all taxes
required to be paid or accrued as a consequence of such issuance; and
(b) from any disposition of assets means cash payments received by a
Borrower therefrom (including any cash payments received pursuant to
any note or other debt security received in connection with any asset
disposition) as and when received, net of (i) all legal fees and
expenses and other fees and expenses paid to third parties and incurred
in connection therewith, (ii) all taxes required to be paid or accrued
14
as a consequence of such sale and (iii) amounts applied to repayment of
Consolidated Indebtedness (other than the Obligations) secured by a
Lien on the asset or property disposed;
"Notes" means, collectively, the Swing Line Note, the
Revolving Notes and the Term Notes;
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrowers with respect to (i) the principal and
interest on the Loans, (ii) the Reimbursement Obligations; (iii) all
liabilities of any Borrower to any Lender which arise under a Swap
Agreement, and (iv) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrowers to the
Lenders or the Agent hereunder or, under any one or more of the other
Loan Documents;
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the Participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof and (ii) with
respect to any Lender (other than SouthTrust) and a Swing Line Loan,
the extension of credit represented by the participation of such Lender
hereunder in the liability of SouthTrust in respect of a Swing Line
Loan made by SouthTrust in accordance with the terms hereof;
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto;
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of
ERISA or Section 412 of the Code and which is or was maintained for
employees of the Borrowers or any ERISA Affiliate;
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof;
"Principal Office" means the office of the Agent at 000 Xxxxx
00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, or such other office and
address as the Agent may from time to time designate and deliver notice
of such designation in accordance with Section 12.2 hereof;
"Rate Hedging Obligations" means any and all obligations of
the Borrowers, 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,
15
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (ii) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing;
"Regulation D" means Regulation D of the Board as the same
may be amended or supplemented from time to time;
"Regulatory Change" means any change effective after the
Closing Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof or compliance by any
Lender with any request or directive regarding capital adequacy,
including with respect to "highly leveraged transactions," whether or
not having the force of law, whether or not failure to comply therewith
would be unlawful and whether or not published or proposed prior to the
date hereof;
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrowers with respect to any Letter of Credit to
reimburse Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by Issuing Bank of
proceeds of Loans pursuant to Section 4.2 hereof) for amounts
theretofore paid by Issuing Bank pursuant to a drawing under such
Letter of Credit;
"Request For Advance/Interest Rate Election" means a Request
For Advance/Interest Rate Election in the form of Exhibit D hereto to
be delivered by the Borrowers in connection with any Advance or
interest rate election with respect to any of the Loans;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) of at least (i) if there
shall be fewer than three (3) Lenders, 100% of the aggregate Credit
Exposures of all Lenders on such date, and (ii) if there shall be three
(3) or more Lenders, 66-2/3% of the aggregate Credit Exposures of all
the Lenders on such date. For purposes of the preceding sentence, the
amount of the "Credit Exposure" of each Lender shall be equal at all
times (a) other than following the occurrence and during the
continuance of an Event of Default, to the sum of the amounts of its
Revolving Credit Commitment, Term Loan Commitment and Letter of Credit
Commitment, and (b) following the occurrence and during the continuance
of an Event of Default, to the sum of (i) the aggregate principal
amount of such Lender's Applicable Commitment Percentage of Revolving
Credit Outstandings plus (ii) the aggregate unutilized amount of such
Lender's Revolving Credit Commitment plus (iii) the amount of such
Lender's Applicable Commitment Percentage of Letter of Credit
Outstandings and Swing Line Outstandings plus (iv) the aggregate
principal amount of such Lender's Applicable Commitment Percentage of
Term Loan Outstandings; provided that, for the purpose of this
definition only, (x) if any Lender shall have failed to fund its
Applicable Commitment Percentage of any Advance of such Lender shall be
16
deemed reduced by the amount it so failed to fund for so long as such
failure shall continue and such Lender's Credit Exposure attributable
to such failure shall be deemed held by any Lender making more than its
Applicable Commitment Percentage of such Advance to the extent it
covers such failure, (y) if any Lender shall have failed to pay to the
Issuing Bank upon demand its Applicable Commitment Percentage of any
drawing under any Letter of Credit resulting in an outstanding
Reimbursement Obligation, such Lender's Credit Exposure attributable to
such Letter of Credit Outstandings shall be deemed to be held by
Issuing Bank and (z) if any Lender shall have failed to pay to
SouthTrust on demand its Applicable Commitment Percentage of any Swing
Line Loan (whether by funding its Participation therein or otherwise),
such Lender's Credit Exposure attributable to all Swing Line
Outstandings shall be deemed to be held by SouthTrust until such Lender
shall pay such deficiency amount to SouthTrust together with interest
thereon as provided in Section 2.11;
"Reserve Requirement" means, for any Eurodollar Rate Loan with
respect thereto, the maximum aggregate rate at which reserves
(including, without limitation, any marginal, supplemental or emergency
reserves) are required to be maintained with respect thereto under
Regulation D by the member banks of the Federal Reserve System with
respect to Dollar funding in the London interbank market. Without
limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member
banks by reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the Base Rate
is to be determined or (ii) any category of extensions of credit or
other assets which include Eurodollar Rate Loans;
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Giant Holding now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock to the holders
of that class; (b) any redemption, conversion, exchange, retirement or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of capital stock of Giant Holding
now or hereafter outstanding (other than an exchange of shares of one
class of capital stock of Giant Holding for shares of another class of
capital stock of Giant Holding); and (c) any payment made to retire, or
to obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock of Giant Holding now or
hereafter outstanding;
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrowers up to an aggregate principal amount at any one time
outstanding as set forth on Exhibit A hereto as the same may be
increased or decreased from time to time pursuant to this Agreement;
"Revolving Credit Facility" means the facility described in
Article II hereof providing for Loans to the Borrowers by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment;
17
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding;
"Revolving Credit Termination Date" means (i) April __, 2002
or (ii) such earlier date of termination of Lenders' obligations
pursuant to Section 10.1 upon the occurrence of an Event of Default, or
(iii) such date as the Borrowers may voluntarily and permanently
terminate the Revolving Credit Facility by payment in full of all
Obligations (including the discharge of all Obligations of Issuing Bank
and the Lenders with respect to Swing Line Outstandings, Letters of
Credit and Participations) or (iv) such later date as the Borrowers and
the Lender shall agree in writing pursuant to Section 2.13 hereof;
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Article II
hereof;
"Revolving Notes" means, collectively, the promissory notes of
the Borrowers evidencing Revolving Loans executed and delivered to the
Lenders as provided in Section 2.4 hereof substantially in the form
attached hereto as Exhibit E, with appropriate insertions as to
amounts, dates and names of Lenders;
"Security Agreement" means that certain Amended and Restated
Security Agreement dated as of the date hereof between the Borrowers
and the Agent for the benefit of the Lenders and substantially in the
form of Exhibit G hereto, as hereafter amended, supplemented or
replaced from time to time;
"Security Instruments" means, collectively, the Security
Agreement, and all other agreements, instruments and other documents,
whether now existing or hereafter in effect, pursuant to which the
Borrowers shall grant or convey to the Agent or the Lenders a Lien in
property as security for the Obligations, as any of them may be
amended, supplemented or replaced from time to time;
"Segment" means a portion of the Term Loan (or all thereof)
with respect to which a particular interest rate is (or is proposed to
be) applicable;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA in respect of which the Borrowers are an
"employer" as described in Section 4001(b) of ERISA and which is not a
Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
18
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted;
"Standby Letter of Credit" means an irrevocable Standby Letter
of Credit issued hereunder for the account of the Borrowers or any of
its Subsidiaries, provided that the expiry date of a Standby Letter of
Credit shall not be later than the latest of (i) twelve (12) months
subsequent to the date of issuance thereof with such automatic renewal
terms thereof as the Issuing Bank shall reasonably approve provided
such renewal does not extend the expiry date beyond the time in clause
(ii) following; and (ii) the fifth Business Day preceding the Revolving
Credit Termination Date;
"Subordination Agreement" means that certain Subordination
Agreement dated as of the date hereof between the Borrowers and the
Agent for the benefit of the Lenders, as hereafter amended,
supplemented or replaced from time to time;
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by any of the
Borrowers and/or by one or more of any Borrower's Subsidiaries;
"Swap Agreement" means one or more agreements between any
Borrower and any Person with respect to Indebtedness evidenced by the
Notes, on terms mutually acceptable to such Borrower and such Person
and approved by each of the Lenders, which agreements create Rate
Hedging Obligations; provided, however, that no such approval of the
Lenders shall be required to the extent such agreements are entered
into between such Borrower and any Lender;
"Swing Line" means the revolving line of credit established
by SouthTrust in favor of the Borrowers pursuant to Section 2.6;
"Swing Line Loans" means loans made by SouthTrust to the
Borrowers pursuant to Section 2.6;
"Swing Line Note" means the promissory note of the Borrowers
evidencing the Swing Line executed and delivered to SouthTrust as
provided in Section 2.5 substantially in the form of Exhibit F-2;
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding;
"Term Loan" means the loan made pursuant to the Term Loan
Facility in accordance with Article III;
19
"Term Loan Commitment" means, with respect to each Lender, the
obligation of such Lender to make the Term Loan to the Borrowers up to
an aggregate principal amount at any one time outstanding as set forth
on Exhibit A hereto;
"Term Loan Facility" means the facility described in Article
III providing for a Term Loan to the Borrowers by the Lenders in the
principal amount of the Total Term Loan Commitment'
"Term Loan Outstandings" means, as of any date of
determination, the aggregate principal amount of the Term Loan then
outstanding and all interest accrued thereon;
"Term Loan Termination Date" means (i) April 30, 2004 or (ii)
such earlier date of termination of Lenders' obligations pursuant to
Section 10.1 upon the occurrence of an Event of Default, or (iii) such
date as the Borrowers may voluntarily or by mandatory prepayment
permanently terminate the Term Loan Facility by payment in full of all
Term Loan Outstandings and all other Obligations incurred in connection
with the Term Loan;
"Term Notes" the term loan promissory notes of the Borrowers
executed and delivered to the Lenders as provided in Section 3.8 hereof
in substantially the form attached hereto as Exhibit F and any amended
and restated promissory notes of the Borrowers delivered after the date
hereof in substitution thereof;
"Termination Event" means: (a) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(b) the withdrawal of the Borrowers or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4068(f) of ERISA; or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (d) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (e) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (f) the partial or complete withdrawal of the
Borrowers or any ERISA Affiliate from a Multiemployer Plan; or (g) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (h) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (i) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA;
"Total Letter of Credit Commitment" means an aggregate stated
amount equal to $5,500,000;
"Total Revolving Credit Commitment" means a principal amount
equal to $40,000,000, as reduced from time to time in accordance with
Section 2.6 hereof;
20
"Total Term Loan Commitment" means a principal amount equal
to $25,000,000;
1.3 Accounting Terms. 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.
1.4 UCC Terms. Each term defined in Article 1 or 9 of the South
Carolina 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.
ARTICLE II
The Revolving Credit Facility
2.1 Revolving Loans
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrowers under the Revolving Credit Facility from time to time from
the Closing Date until the Revolving Credit Termination Date on a pro
rata basis as to the total borrowing requested by the Borrowers on any
day determined by such Lender's Applicable Commitment Percentage up to
but not exceeding the Revolving Credit Commitment of such Lender,
provided, however, that the Lenders will not be required and shall
have no obligation to make any such Advance (i) so long as a Default
or an Event of Default has occurred and is continuing or (ii) if the
Agent has accelerated the maturity of any of the Notes as a result of
an Event of Default, provided further, however, that immediately after
giving effect to each such Advance,the amount of Revolving Credit
Outstandings plus Swing Line Outstandings shall not exceed the Total
Revolving CreditCommitment. Within such limits, the Borrowers may
borrow, repay and reborrow under the Revolving Credit Facility on any
Business Day from the Closing Date until, but (as to borrowings and
reborrowings) not including, the Revolving Credit Termination Date;
provided, however, that (x) no Revolving Loan that is a Eurodollar
Rate Loan shall be made which has an Interest Period that extends
beyond the Revolving Credit Termination Date and (y) each Revolving
Loan that is a Eurodollar Rate Loan may, subject to the provisions of
Section 2.3 hereof, be repaid only on the last day of the Interest
Period with respect thereto.
(b) Amounts. Except as otherwise permitted by the Lenders
from time to time, the aggregate unpaid principal amount of the
Revolving Credit Outstandings plus Swing Line Outstandings shall not
exceed at any time the Total Revolving Credit Commitment. Each
Revolving Loan hereunder and each conversion under Section 2.9 hereof
shall be in an amount of at least $100,000, and, if greater than
$100,000, an integral multiple of $100,000.
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(c) Mandatory Paydown. The aggregate Revolving Credit
Outstandings plus Swing Line Outstandings shall be reduced to not more
than an aggregate of $30,000,000 for a period of 30 consecutive days
during each twelve month period following the initial Advance under
the Revolving Credit Facility.
(d) Advances.
(i) An Authorized Representative shall give the Agent
(1) at least three (3) Business Days' irrevocable written
notice of each Eurodollar Rate Loan (whether representing an
additional borrowing hereunder or the conversion of
borrowing hereunder from Base Rate Loans to Eurodollar Rate
Loans) prior to 10:30 A.M., Birmingham, Alabama time and (2)
irrevocable written 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. Birmingham, Alabama
time on the day of such proposed Revolving Loan. Each such
written notice, which shall be effective upon receipt by the
Agent, may be delivered by telefacsimile and shall be in the
form of the Request For Advance/Interest Rate Election and
shall specify the amount of the borrowing, the type of
Revolving Loan (Base Rate or Eurodollar Rate), the date of
borrowing and, if a Eurodollar Rate Loan, the Interest
Period to be used in the computation of interest. Notice of
receipt of such Request For Advance/Interest Rate Election
shall be provided by the Agent to each Lender by
telefacsimile with reasonable promptness, but not later than
1:00 P.M., Birmingham, Alabama time on the same day as
Agent's receipt of such notice.
(ii) Not later than 1:00 P.M., Birmingham, Alabama time
on the date specified for each Advance under this Section
2.1, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, initiate a wire transfer
to the Agent in the amount of its pro rata share, determined
according to such Lender's Applicable Commitment Percentage,
of the Revolving Loan or Revolving Loans to be made on such
day. Such wire transfer shall be directed to the Agent at
the Principal Office and shall be in the form of immediately
available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be
made available to the Borrowers by delivery of the proceeds
thereof to the Borrowers' Account or otherwise as shall be
directed in the applicable Borrowing Notice by the
Authorized Representative.
(iii) The duration of the initial Interest Period for
each Revolving Loan that is a Eurodollar Rate Loan shall be
as specified in the initial Request For Advance/Interest
Rate Election delivered in accordance with clause (i) above.
The Borrowers shall have the option to convert the
Eurodollar Rate Loans in accordance with Section 2.9 hereof.
In the event the Agent fails to receive a properly completed
Request for Advance/Interest Rate Selection by such time as
required by Section 2.9 hereof to convert a Eurodollar Rate
Loan, the duration of each subsequent Interest Period for
such Eurodollar Rate Loan after the initial Interest Period
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therefor shall be determined automatically by the Agent on
the date three (3) Business Days' prior to the end of such
preceding Interest Period and shall be that available
Interest Period on such date (30, 60 or 90 days) which has
the lowest corresponding Eurodollar Rate and, if more than
one available Interest Period has the same lowest Eurodollar
Rate, the shortest such Interest Period shall be the
applicable subsequent Interest Period for such Eurodollar
Rate Loan.
(iv) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit prior to the Revolving
Credit Termination Date, notice of such drawing and
resulting Reimbursement Obligation shall be provided
promptly by Issuing Bank to the Agent and the Agent shall
provide notice to each Lender and the Borrowers by
telephone. If such notice to the Lenders of a drawing under
any Letter of Credit is given by the Agent at or before 1:00
p.m. on any Business Day, the Borrowers shall be deemed to
have requested, and each Lender shall, pursuant to the
conditions of this Agreement, make an Advance as a Base Rate
Loan under the Revolving Credit Facility in the amount of
such Lender's Applicable Commitment Percentage of such
Reimbursement Obligation and shall pay such amount to the
Agent for the account of Issuing Bank at the Principal
Office in Dollars and in immediately available funds before
2:30 P.M. on the same Business Day. If notice to the Lenders
is given by the Agent after 1:00 P.M. on any Business Day,
the Borrowers shall be deemed to have requested, and each
Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make an Advance as a Base Rate
Loan under the Revolving Credit Facility in the amount of
such Lender's Applicable Commitment Percentage of such
Reimbursement Obligation and shall pay such amount to the
Agent for the account of Issuing Bank at the Principal
Office in Dollars and in immediately available funds before
12:00 noon on the next following Business Day. Such Base
Rate Loan shall continue unless and until the Borrowers
convert such Base Rate Loan in accordance with the terms of
Section 2.9 hereof.
2.2 Payment of Interest.
(a) The Borrowers shall pay interest to the Agent for the
account of each Lender on the outstanding and unpaid principal amount
of each Revolving Loan made by such Lender for the period commencing
on the date of such Revolving Loan until such Revolving Loan shall be
due at the Base Rate applicable for each Business Day (and as applied
for each day which is not a Business Day) during such period minus one
percent (1%) for Base Rate Loans or the applicable Eurodollar Rate for
Eurodollar Rate Loans. The applicable Eurodollar Rate for any
Eurodollar Rate Loan shall be that Eurodollar Rate available for the
entire Interest Period for such Eurodollar Rate Loan, which Interest
Period has either been designated by the Authorized Representative in
the Request for Advance/Interest Rate Election and delivered to the
Agent pursuant to Sections 2.1 or 2.9 hereof or, in the absence of
such designation and delivery, has been determined for the
corresponding Interest Period determined in accordance with Section
2.1(d)(iii) hereof. If any amount shall not be paid when due (at
maturity, by acceleration or otherwise), all amounts outstanding
hereunder shall bear interest commencing on the date when due until,
but excluding, the date thereafter when such amounts past due are paid
23
in full (i) in the case of a Eurodollar Rate Loan, until the end of
the Interest Period with respect to any Eurodollar Rate Loan at a rate
of two percent (2%) above the applicable Eurodollar Rate for such
Eurodollar Rate Loan and thereafter at a rate per annum which shall be
two percent (2%) plus the Base Rate, (ii) with respect to Base Rate
Loans, at a rate of interest per annum which shall be two percent (2%)
above the Base Rate, or (iii) in any case, the maximum rate permitted
by applicable law, if lower.
(b) Interest on each Revolving Loan shall be computed on the
basis of a year of 360 days and calculated in each case for the actual
number of days elapsed. Interest on each Revolving Loan shall be paid
(i) monthly in arrears on the last Business Day of each month
commencing April 30, 1999 for each Base Rate Loan, (ii) on the last
day of the applicable Interest Period for each Eurodollar Rate Loan
and (iii) upon payment in full of the principal amount of such
Revolving Loan.
2.3 Payment of Principal
(a) The principal amount of each Revolving Loan shall be due
and payable to the Agent for the benefit of each Lender in full on the
Revolving Credit Termination Date, or earlier as specifically provided
herein. The principal amount of any Base Rate Loan may be prepaid in
whole or in part at any time. The principal amount of any Eurodollar
Rate Loan may be prepaid only at the end of the applicable Interest
Period unless the Borrowers shall pay to the Agent for the account of
the Lenders the amount, if any, required under Section 5.4 hereof. If
at any time the amount of Revolving Credit Outstandings exceeds the
Total Revolving Credit Commitment, a principal amount of the
outstanding Revolving Loans equal to such excess shall be due and
payable immediately. All prepayments made by the Borrowers shall be in
the amount of $100,000 or such greater amount which is an integral
multiple of $100,000, or such other amount as necessary to comply with
this Section 2.3 or with Section 2.1(c) and 2.6 hereof.
(b) Each payment of principal (including any prepayment)
and payment of interest and fees, and any other amount required to be
paid to the Lenders with respect to the Revolving Loans, shall be made
to the Agent at the Principal Office, for the account of each Lender,
in Dollars and in immediately available funds before 3:00 P.M.
Birmingham, Alabama time on the date such payment is due. The Agent
may, but shall not be obligated to, debit the amount of any such
payment which is not made by such time to any ordinary deposit
account, if any, of any one or more Borrowers with the Agent.
(c) The Agent shall deem any payment by or on behalf of
the Borrowers hereunder that is not made both in Dollars and in
immediately available funds and prior to 3:00 P.M. Birmingham, Alabama
time to be a non-conforming payment. Any such payment shall not be
deemed to be received by the Agent until the later of (i) the time
such funds become available funds and (ii) the next Business Day. Any
non-conforming payment may constitute or become a Default or Event of
Default pursuant to Section 10.1(b) hereof. Interest shall continue to
accrue on any principal as to which a non-conforming payment is made
until the later of (x) the date such funds become available funds or
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(y) the next Business Day at the respective rates of interest per
annum specified in the proviso to Section 2.2 hereof regarding
interest on late payments, from the date such amount was due and
payable.
(d) In the event that any payment hereunder or under the
Notes becomes due and payable on a day other than a Business Day, then
such due date shall be extended to the next succeeding Business Day
unless provided otherwise under clause (ii) of the definition of
"Interest Period"; provided that interest shall continue to accrue
during the period of any such extension and provided further, that in
no event shall any such due date be extended beyond the Revolving
Credit Termination Date.
2.4 Revolving Credit Notes. Revolving Credit Loans made by each
Lender shall be evidenced by the Revolving Credit Note payable to the order
of such Lender in the respective amounts of its Revolving Credit
Commitment, which Revolving Credit Notes shall be dated the Closing Date or
such later date pursuant to an Assignment and Acceptance and shall be duly
completed, executed and delivered by the Borrowers.
2.5 Swing Line Notes. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of SouthTrust
in the amount of the Swing Line, which Note shall be dated the Closing Date
and shall be duly completed, executed and delivered by the Borrower.
2.6 Swing Line. (a) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit
Facility in an efficient manner and to minimize the transfer of funds
between the Agent and the Lenders, SouthTrust shall make available Swing
Line Loans to the Borrowers prior to the Revolving Credit Termination Date.
SouthTrust shall not be obligated to make any Swing Line Loan pursuant
hereto (i) if to the actual knowledge of SouthTrust the Borrowers are not
in compliance with all the conditions to the making of Revolving Loans set
forth in this Agreement, (ii) if after giving effect to such Swing Line
Loan, the Swing Line Outstandings exceed $10,000,000, or (iii) if after
giving effect to such Swing Line Loan, the sum of the Swing Line
Outstandings and Revolving Credit Outstandings exceeds the Total Revolving
Credit Commitment. The Borrowers may, subject to the conditions set forth
in the preceding sentence, borrow, repay and reborrow under this Section
2.6. Unless notified to the contrary by SouthTrust, borrowings under the
Swing Line shall be made in the minimum amount of $50,000 or, if greater,
in amounts which are integral multiples of $50,000, or in the amount
necessary to effect a Base Rate Refunding Loan, upon written request by
telefacsimile transmission, effective upon receipt, by an Authorized
Representative of the Borrowers made to SouthTrust not later than 12:30
P.M. on the Business Day of the requested borrowing. Each such Borrowing
Notice shall specify the amount of the borrowing and the date of borrowing,
and shall be in the form of Exhibit D-2, with appropriate insertions.
Unless notified to the contrary by SouthTrust, each repayment of a Swing
Line Loan shall be in an amount which is an integral multiple of $50,000 or
the aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of SouthTrust. Swing Line Loans shall bear interest at the
Borrowers' option of the Base Rate or the Floating Eurodollar Rate. All
25
accrued and unpaid interest on Swing Line Loans shall be payable, on the
dates and in the manner provided in Section 2.2 with respect to interest on
Base Rate Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from SouthTrust a Participation therein in an
amount equal to that Lender's Applicable Commitment Percentage of such
Swing Line Loan. Upon demand made by SouthTrust, each Lender shall,
according to its Applicable Commitment Percentage of such Swing Line Loan,
promptly provide to SouthTrust its purchase price therefor in an amount
equal to its Participation therein. Any Advance made by a Lender pursuant
to demand of SouthTrust of the purchase price of its Participation shall
when made be deemed to be (i) provided that the conditions to making
Revolving Loans shall be satisfied, a Base Rate Refunding Loan under
Section 2.1, and (ii) in all other cases, the funding by each Lender of the
purchase price of its Participation in such Swing Line Loan. The obligation
of each Lender to so provide its purchase price to SouthTrust shall be
absolute and unconditional and shall not be affected by the occurrence of
an Event of Default or any other occurrence or event.
The Borrowers, at their option and subject to the terms hereof, may
request an Advance pursuant to Section 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to SouthTrust the amount necessary to repay such
Swing Line Outstandings (which SouthTrust shall then apply to such
repayment) and credit any balance of the Advance in immediately available
funds in the manner directed by the Borrower pursuant to Section 2.1(a).
The proceeds of such Advances shall be paid to SouthTrust for application
to the Swing Line Outstandings and the Lenders shall then be deemed to have
made Loans in the amount of such Advances. The Swing Line shall continue in
effect until the Revolving Credit Termination Date, at which time all Swing
Line Outstandings and accrued interest thereon shall be due and payable in
full.
2.7 Pro Rata Payments. Except as otherwise provided herein, (a)
each payment on account of the principal of and interest on the Revolving
Loans and the fees described in Section 2.10 hereof and the Swing Line
Loans shall be made to the Agent for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, (b) all payments to be
made by the Borrowers for the account of each of the Lenders on account of
principal, interest and fees, shall be made without set-off or
counterclaim, and (c) the Agent will distribute payments received from the
Borrowers to the Lenders on the same day such payments are received in
accordance with the terms of this Agreement.
2.8 Reductions. The Borrowers shall, by notice from an
Authorized Representative, have the right from time to time, upon not less
than two (2) Business Days written notice to the Agent, to reduce the Total
Revolving Credit Commitment. Each such reduction shall be in the aggregate
amount of $1,000,000 or such greater amount which is in an integral
multiple of $100,000, and shall permanently reduce the Total Revolving
Credit Commitment. No such reduction shall result in the payment of any
Eurodollar Rate Loan other than on the last day of the Interest Period of
such Eurodollar Rate Loan unless such prepayment is accompanied by amounts
due, if any, under Section 5.4 hereof. Each reduction of the Total
Revolving Credit Commitment shall be accompanied by payment of the Loans to
the extent that the amount of Revolving Credit Outstandings plus Letter of
26
Credit Outstandings plus Swing Line Outstandings exceeds the Total
Revolving Credit Commitment after giving effect to such reduction, together
with accrued and unpaid interest on the amounts prepaid.
2.9 Conversions. The Borrowers may:
(a) upon delivery of a properly completed Request For
Advance/Interest Rate Election to the Agent on or before 10:30 A.M.
Birmingham, Alabama time on any Business Day, convert all or a part of
Eurodollar Rate Loans to Base Rate Loans on the last day of the
Interest Period for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing and subject to the limitations set forth
below and in Article V hereof, upon delivery of a properly completed
Request For Advance/Interest Rate Election to the Agent on or before
10:30 A.M. Birmingham, Alabama time three (3) Business Days' prior to
the date of such election or conversion, convert Base Rate Loans to
Eurodollar Rate Loans on any date, or continue any Eurodollar Rate
Loan by election of a subsequent Interest Period therefor on the last
day of the Interest Period for such Eurodollar Rate Loan.
Each conversion pursuant to this Section 2.9 shall be subject to the
limitations on Eurodollar Rate Loans set forth in the definition of "Interest
Period" herein and in Sections 2.1, 2.3 and Article V hereof. The Agent shall
give written notice to each Lender of such notice of election or conversion
prior to 3:00 P.M. Birmingham, Alabama time on the day such notice of conversion
is received. If the Agent does not receive a notice of election of duration of
an Interest Period or to convert an outstanding Eurodollar Rate Loan by the time
prescribed above, the Borrower shall be deemed to have elected to convert such
Eurodollar Rate Loan to a Base Rate Loan on the last day of the Interest Period
for such Eurodollar Rate Loan. All such conversions of Loans shall be effected
pro rata based on the Applicable Commitment Percentages of the Lenders.
2.10 Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrowers agree to pay
to the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, an unused fee equal in amount to the Applicable Unused
Fee multiplied by the sum of (i) the average daily amount by which the Total
Revolving Credit Commitment exceeds the sum of Revolving Credit Outstandings and
Swing Line Outstandings, plus (ii) the average daily amount by which the Total
Letter of Credit Commitment exceeds Letter of Credit Outstandings. Such payments
of fees provided for in this Section 2.10 shall be due in arrears on the last
Business Day of each December, March, June and September beginning June 1999, to
and on the Revolving Credit Termination Date. Notwithstanding the foregoing, so
long as any Lender fails to make available any portion of its Revolving Credit
Commitment or Letter of Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until such
Lender shall make available such portion, as applicable. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
2.11 Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to make
27
any Loan hereunder nor shall the Revolving Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender. Without
limiting the generality of the foregoing, in the event any Lender shall fail to
advance funds to the Borrowers as herein provided, the Agent may in its
discretion, but shall not be obligated to, advance under the Revolving Note in
its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such advance under its Revolving Note; provided that, upon payment to
the Agent from such other Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the
most recent date or dates interest was paid to the Agent by the Borrowers on
each Revolving Loan comprising the deficiency advance at the interest rate per
annum for overnight borrowing by the Agent from the Federal Reserve Bank, then
such payment shall be credited against the applicable Revolving Note of the
Agent in full payment of such deficiency advance and the Borrowers shall be
deemed to have borrowed the amount of such deficiency advance from such other
Lender as of the most recent date or dates, as the case may be, upon which any
payments of interest were made by the Borrowers thereon. In the event any Lender
shall fail to fund its purchase of a Participation after notice from the Issuing
Bank or SouthTrust as the Swing Line lender, as applicable, such Lender shall
pay to the Issuing Bank or SouthTrust as the Swing Line lender, as applicable,
such amount on demand, together with interest on the amount so due from the date
of such notice at the interest rate per annum for overnight borrowing by the
Agent from the Federal Reserve Bank to the date such purchase price is received
by the Issuing Bank or SouthTrust as the Swing Line lender, as applicable.
2.12 Use of Proceeds. The proceeds of the Loans made pursuant to
the Revolving Credit Facility hereunder shall be used by the Borrowers to
finance a stock repurchase program by Giant Holding of its capital stock as
approved by its board of directors and for general working capital needs.
2.13 Extension of Revolving Credit Termination Date. At the
request of the Borrowers the Lenders may, in their sole discretion, elect to
extend the Revolving Credit Termination Date then in effect for additional
periods of one year each and thereby restore the Revolving Credit Facility to a
three year maturity. The Borrowers shall notify the Agent of their request for
such an extension by delivering to the Agent notice of such request signed by an
Authorized Representative not more than ninety (90) days nor less than sixty
(60) days prior to an anniversary of the Closing Date. The Agent shall as
promptly as practicable, and in any event within five (5) days, deliver a copy
of such notice to each Lender. If each Lender shall elect to so extend and has
notified the Agent in writing of its election within fifty (50) days of its
receipt of such notice, the Agent shall notify the Borrowers in writing within
sixty (60) days of its receipt of such request for extension of the decision of
any Lender to extend the Revolving Credit Termination Date. Failure by any
Lender to give such notice shall constitute refusal by the Lender to extend the
Revolving Credit Termination Date. In no event shall the Revolving Credit
Termination Date be extended if a prior request for such extension was refused
by the Lenders.
2.14 Appointment of Giant Holding and Authorized Representatives
as Agents for the Borrowers. Each Borrower hereby irrevocably appoints Giant
28
Holding and each Authorized Representative as its agent and attorney-in-fact for
the purpose of all transactions contemplated by this Agreement or any other Loan
Document. Each Borrower grants to Giant Holding and each Authorized
Representative (whether acting jointly or separately) an irrevocable power of
attorney to act on behalf of such Borrower and to take any and all actions
contemplated by any Loan Document on behalf of each Borrower, including without
limitation the delivery of any Request for Advance/Interest Rate Election or
other notice, request or directive, the receipt or disbursement of any Loans,
the execution of any documents, and the grant or conveyance of any Lien or
title.
ARTICLE 111
The Term Loan Facility
3.1 Term Loan. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make a Term Loan to the Borrowers
such that on the Closing Date the Term Loan Outstandings are equal in amount to
the Total Term Loan Commitment, such Term Loan to consist of the Advance made by
SouthTrust to the Borrowers in the original amount of $12,000,000 on the date of
the Existing Agreement, which has a principal balance of $9,800,000 as of the
date hereof, an Advance to the Borrowers by the Lenders (other than SouthTrust)
in the amount of $5,319,148.94 on the Closing Date on a pro rata basis
determined by the Term Loan Commitment of such Lender and an Advance to the
Borrowers by SouthTrust, as Lender, in the amount of $4,561,702.13 on the
Closing Date. The principal amount of each Segment of the Term Loan outstanding
hereunder from time to time shall bear interest, at the Borrower's election, at
an interest rate per annum equal to the Base Rate or the Eurodollar Rate;
provided, however, that (x) no Eurodollar Rate Segment shall have an Interest
Period that extends beyond the Term Loan Termination Date, (y) each Eurodollar
Rate Segment shall be in the minimum amount of $10,000 and if greater, an
integral multiple of $10,000, and (z) each Eurodollar Rate Segment may, subject
to the provisions of Sections 3.4, 3.7 and 3.8, be repaid only on the last day
of the Interest Period with respect thereto. No amount of the Term Loan repaid
or prepaid by the Borrowers may be reborrowed hereunder.
3.2 Term Loan Advances. Not later than 1:00 P.M., Birmingham,
Alabama time on the Closing Date, each Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, initiate a wire transfer to the
Agent in the amount of its pro rata share, determined according to such Lender's
Applicable Commitment Percentage, of the Term Loan. Such wire transfer shall be
directed to the Agent at the Principal Office and shall be in the form of
immediately available funds. The amount so received by the Agent shall, subject
to the terms and conditions of this Agreement, be made available to the
Borrowers by delivery of the proceeds thereof to the Borrowers' Account or
otherwise as shall be directed in the applicable Borrowing Notice by the
Authorized Representative.
3.3 Payment of Interest.
(a) The Borrowers shall pay interest to the Agent for the
account of each Lender on the outstanding and unpaid principal amount
of each Segment of the Term Loan made by such Lender commencing on the
date of determination of the interest rate applicable to such Segment
until such Segment shall be due at the Base Rate applicable for each
29
Business Day (and as applied for each day which is not a Business Day)
during such period minus one percent (1%) for Base Rate Segments or
the applicable Eurodollar Rate for Eurodollar Rate Segments. The
applicable Eurodollar Rate for any Eurodollar Rate Segment shall be
that Eurodollar Rate available for the entire Interest Period for such
Eurodollar Rate Segment, which Interest Period has been designated by
the Authorized Representative in the Request for Advance/Interest Rate
Election and delivered to the Agent pursuant to either Sections 3.2 or
3.8 hereof. If any amount shall not be paid when due (at maturity, by
acceleration or otherwise), all amounts outstanding hereunder shall
bear interest commencing on the date when due until, but excluding,
the date thereafter when such amounts past due are paid in full (i) in
the case of a Eurodollar Rate Segment, until the end of the Interest
Period with respect to any Eurodollar Rate Segment at a rate of two
percent (2%) above the applicable Eurodollar Rate for such Eurodollar
Rate Segment and thereafter at a rate per annum which shall be two
percent (2%) plus the Base Rate, (ii) with respect to Base Rate
Segments, at a rate of interest per annum which shall be two percent
(2%) above the Base Rate, or (iii) in any case, the maximum rate
permitted by applicable law, if lower.
(b) Interest on each Term Loan Segment shall be computed on
the basis of a year of 360 days and calculated in each case for the
actual number of days elapsed. Interest on each Term Loan Segment
shall be paid (i) monthly in arrears on the last Business Day of each
month commencing April 30, 1999 for each Base Rate Segment, (ii) on
the last day of the applicable Interest Period for each Eurodollar
Rate Segment and (iii) upon payment in full of the principal amount of
the Term Loan.
3.4 Payment of Principal.
(a) The principal amount of the Term Loan shall be repaid
in sixty (60) consecutive monthly installments of equal amounts (based
on a fully amortized payment schedule) on the last Business Day of
each month commencing May 31, 1999; provided, however, that the entire
amount of the Term Loan Outstandings shall be due and payable in full
on the Term Loan Termination Date.
(b) Each payment of principal (including any prepayment)
and payment of interest and fees, and any other amount required to be
paid to the Lenders with respect to the Term Loan, shall be made to
the Agent at the Principal Office, for the account of each Lender, in
Dollars and in immediately available funds before 3:00 P.M.
Birmingham, Alabama time on the date such payment is due. The Agent
may, but shall not be obligated to, debit the amount of any such
payment which is not made by such time to any ordinary deposit
account, if any, of any one or more Borrowers with the Agent.
(c) The Agent shall deem any payment by or on behalf of
the Borrowers hereunder that is not made both in Dollars and in
immediately available funds and prior to 3:00 P.M. Birmingham, Alabama
time to be a non-conforming payment. Any such payment shall not be
deemed to be received by the Agent until the later of (i) the time
such funds become available funds and (ii) the next Business Day. Any
non-conforming payment may constitute or become a Default or Event of
Default pursuant to Section 10.1(b) hereof. Interest shall continue to
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accrue on any principal as to which a non-conforming payment is made
until the later of (x) the date such funds become available funds or
(y) the next Business Day at the respective rates of interest per
annum specified in the proviso to Section 3.3 hereof regarding
interest on late payments, from the date such amount was due and
payable.
(d) In the event that any payment hereunder or under the
Term Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business
Day unless provided otherwise under clause (ii) of the definition of
"Interest Period"; provided that interest shall continue to accrue
during the period of any such extension and provided further, that in
no event shall any such due date be extended beyond the Term Loan
Termination Date.
3.5 Use of Proceeds. The proceeds of the Loans made pursuant to
the Term Loan Facility (a) on the Closing Date shall be used by the
Borrowers to refinance indebtedness of Solite Corporation in connection with the
Solite Transaction and pursuant to the Solite Documents and (b) on the Amendment
No. 2 Effective Date to finance a stock repurchase program by Giant Holdings of
its capital stock as approved by its board of directors and for general working
capital purposes.
3.6 Term Notes. The Term Loan made by each Lender shall be
evidenced by, and be repayable with interest in accordance with the terms
of, a Term Note payable to the order of such Lender in the amount of its
Applicable Commitment Percentage of the Total Term Loan Commitment, which Term
Note shall be dated the Closing Date or such later date pursuant to an
Assignment and Acceptance and shall be duly completed, executed and delivered by
the Borrowers.
3.7 Prepayment of Term Loan.
(a) The Borrowers may prepay up to $5,000,000 of the
principal amount of the Term Loan from operating cash flow in any
calendar year on any Business Day, without penalty or premium, upon
not less than two (2) Business Days' prior written notice (effective
upon receipt) to the Lender, which notice shall be irrevocable. Any
prepayment permitted under this Section 3.7(a) shall be made at a
prepayment price equal to the amount of principal to be prepaid. All
prepayments under this Section 3.7 shall be made in the minimum
principal amount of $100,000 or any integral multiple of $25,000 in
excess thereof, and all such prepayments of principal shall be applied
to installments of principal in inverse order of their maturities.
(b) The Borrowers may also prepay the Term Loan in whole or
in part either (a) from a source other than operating cash flow or (b)
in an amount in excess of $5,000,000 in any calendar year, in each
case at a prepayment price equal to (i), (A) in the case of a partial
prepayment, the amount of principal to be prepaid and (B) in the case
of a full prepayment, the amount of principal plus all accrued and
unpaid interest on the amount of such principal to the date of
prepayment, plus (ii) a prepayment premium on the amount so prepaid
set forth below.
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Date Prepayment Premium
If made on or prior to April 30, 2000 1.00%
If made after April 30, 2000 and
on or prior to April 30, 2002 0.25%
All prepayments under this Section 3.7(b) shall be made on a Business
Day upon not less than two (2) Business Days' prior written notice
(effective upon receipt) to the Lender, which notice shall be
irrevocable, and shall be in the minimum principal amount of $100,000
or any integral multiple of $25,000 in excess thereof. All such
prepayments of principal shall be applied to installments of principal
in inverse order of their maturities.
3.8 Conversions and Elections of Subsequent Interest Periods. The
Borrowers may: Subsequent Interest
(a) upon delivery of a properly completed Request For
Advance/Interest Rate Election to the Agent on or before 10:30 A.M.
Birmingham, Alabama time on any Business Day, convert all or a part of
Eurodollar Rate Segments to Base Rate Segments on the last day of the
Interest Period for such Eurodollar Rate Segments; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing and subject to the limitations set forth
below and in Article V hereof, upon delivery of a properly completed
Request For Advance/Interest Rate Election to the Agent on or before
10:30 A.M. Birmingham, Alabama time three (3) Business Days' prior to
the date of such election or conversion, convert Base Rate Segments to
Eurodollar Rate Segments on any date, or continue any Eurodollar Rate
Segment by election of a subsequent Interest Period therefor on the
last day of the Interest Period for such Eurodollar Rate Segment.
Each conversion pursuant to this Section 3.8 shall be subject to the
limitations on Eurodollar Rate Loans set forth in the definition of "Interest
Period" herein and in Sections 3.1, 3.4 and Article V hereof. The Agent shall
give written notice to each Lender of such notice of election or conversion
prior to 3:00 P.M. Birmingham, Alabama time on the day such notice of conversion
is received. If the Agent does not receive a notice of election of duration of
an Interest Period or to convert an outstanding Eurodollar Rate Segment by the
time prescribed above, the Borrower shall be deemed to have elected to convert
such Eurodollar Rate Segment to a Base Rate Segment on the last day of the
Interest Period for such Eurodollar Rate Segment. All such continuations or
conversions of Segments shall be effected pro rata based on the Applicable
Commitment Percentages of the Lenders.
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ARTICLE IV
The Letter of Credit Facility
4.1 Letters of Credit. Issuing Bank agrees, subject to the terms and
conditions of this Agreement, upon request and for the account of Borrowers, to
issue from time to time up to and including the Revolving Credit Termination
Date Letters of Credit upon delivery to Issuing Bank of an Application for
Letter of Credit in form and content acceptable to Issuing Bank; provided, that
the Letter of Credit Outstandings shall not exceed the Total Letter of Credit
Commitment. No Letter of Credit shall be issued by Issuing Bank with an expiry
date (including any automatic renewal thereof in accordance with the terms of
such Letter of Credit) or payment date occurring subsequent to the fifth
Business Day preceding the Revolving Credit Termination Date.
4.2 Reimbursement.
(a) The Borrowers hereby unconditionally agree immediately to
pay to Issuing Bank on demand at the Principal Office in immediately
available funds all amounts required to pay all drafts drawn and
honored under Letters of Credit and all reasonable expenses incurred by
Issuing Bank in connection with Letters of Credit and in any event and
without demand to place in possession of Issuing Bank sufficient funds
to pay all debts and liabilities arising under any Letter of Credit;
provided that to the extent permitted by Section 2.1(d)(iv) hereof,
such amounts shall be paid pursuant to Advances. The Borrowers'
obligation to pay Issuing Bank under this Section 4.2, and Issuing
Bank's right to receive such payment, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including without limitation the unavailability of any Advance. Issuing
Bank shall give the Borrowers prompt written notice of any request for
a draw under a Letter of Credit. In the event an Advance is not
available, Issuing Bank may charge any account the Borrowers may have
with it for any and all amounts Issuing Bank pays under a Letter of
Credit, plus charges and reasonable expenses as from time to time
agreed to by Issuing Bank and the Borrowers. The Borrowers agree to pay
Issuing Bank interest on any amounts paid by the Issuing Bank in
connection with drafts drawn and honored under Letters of Credit when
due hereunder, and which is not paid pursuant to Advances or Swing Line
Loans if permitted by Section 2.6 as herein contemplated or otherwise
paid by the Borrowers in immediately available funds not later than the
first Business Day after the date of such drawing, at the Default Rate
from the first Business Day after the date of such drawing to the date
such amount is paid in full.
(b) In accordance with the provisions of Section 2.1(d)(iv)
hereof, Issuing Bank shall notify the Agent and the Borrowers of any
drawing under any Letter of Credit as promptly as practicable following
the receipt by Issuing Bank of such drawing.
(c) Each Lender (other than Issuing Bank) shall automatically
acquire on the date of issuance thereof a Participation in the
liability of Issuing Bank in respect of each Letter of Credit in an
amount equal to such Lender's Applicable Commitment Percentage of such
liability, and to the extent that the Borrowers are obligated to pay
Issuing Bank under Section 4A.2(a) hereof, each Lender (other than
Issuing Bank) thereby shall, as hereinafter described, absolutely,
33
unconditionally and irrevocably assume, and shall be unconditionally
obligated to pay to Issuing Bank, its Applicable Commitment Percentage
of the liability of Issuing Bank under such Letter of Credit.
(i) Prior to the Revolving Credit Termination Date,
each Lender (other than Issuing Bank) shall, subject to the
terms and conditions of Article II, make a Revolving Loan
bearing interest at the Base Rate to the Borrowers by paying
to the Agent for the account of Issuing Bank at the Principal
Office in Dollars and in immediately available funds an amount
equal to its Applicable Commitment Percentage of any
Reimbursement Obligation, all as described in and pursuant to
Section 2.1(d).
(ii) With respect to drawings under any Letter of
Credit for which a Revolving Loan is not made as set forth in
clause (i) above, each Lender (other than Issuing Bank) upon
receipt from the Agent of notice of a drawing in the manner
described in Section 2.1(d)(iv), shall promptly pay to the
Agent for the account of Issuing Bank, prior to the applicable
time set forth in Section 2.1(d)(iv), its Applicable
Commitment Percentage of such drawing. Simultaneously with the
making of each such payment by a Lender to the Agent for the
account of Issuing Bank, such Lender shall, automatically and
without any further action on the part of Issuing Bank or such
Lender, acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting interest)
in the related Reimbursement Obligation of the Borrowers.
(iii) Each Lender's obligation to make payment to the
Agent for the account of Issuing Bank pursuant to this Section
4.2(c), and the right of Issuing Bank to receive the same,
shall be made without any offset, abatement, withholding or
reduction whatsoever. If any Lender is obligated to pay but
does not pay amounts to the Agent for the account of the
Issuing Bank in full upon such request as required by this
Section 4.2(c), such Lender shall, on demand, pay to the Agent
for the account of Issuing Bank interest on the unpaid amount
for each day during the period commencing on the date of
notice given to such Lender pursuant to Section 4.2(c) hereof
until such Lender pays such amount to the Agent for the
account of Issuing Bank in full at the interest rate per annum
for overnight borrowings by Issuing Bank from the Federal
Reserve Bank.
(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth in
clause (ii) above, then at any time payment of such
Reimbursement Obligation, in whole or in part, is received by
Issuing Bank from the Borrowers, Issuing Bank shall pay to
each Lender an amount equal to its Applicable Commitment
Percentage of such payment from the Borrowers.
(d) Promptly following the end of each calendar month, Issuing
Bank shall deliver to the Agent, and the Agent shall deliver to each
Lender, a notice describing the aggregate undrawn amount of all Letters
of Credit at the end of such month. Upon the request of any Lender from
34
time to time, Issuing Bank shall deliver to the Agent, and the Agent
shall deliver to such Lender, any other information reasonably
requested by such Lender with respect to Letter of Credit Outstandings.
(e) The issuance by Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 6.1
hereof, be subject to the conditions that such Letter of Credit be in
such form and contain such terms as shall be reasonably satisfactory to
Issuing Bank consistent with the then current practices and procedures
of Issuing Bank with respect to similar letters of credit, and the
Borrowers shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as Issuing Bank shall
have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
and all subsequent amendments and revisions thereto.
(f) The Borrowers agree that Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be
signed or issued by an administrator, executor, trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
liquidator, receiver, attorney in fact or other legal representative of
a party who is authorized under such Letter of Credit to draw or issue
any drafts or other documents.
(g) Without duplication of Section 11.6 hereof, the Borrowers
hereby agree to defend, indemnify and hold harmless Issuing Bank, each
other Lender and the Agent from and against any and all claims and
damages, losses, liabilities, reasonable costs and expenses which
Issuing Bank, such other Lender or the Agent may incur (or which may be
claimed against Issuing Bank, such other Lender or the Agent) by any
Person by reason of or in connection with the issuance or transfer of
or payment or failure to pay under any Letter of Credit; provided that
the Borrowers shall not be required to indemnify Issuing Bank, any
other Lender or the Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by the
willful misconduct or gross negligence of the party to be indemnified.
The provisions of this Section 4.2(g) shall survive repayment of the
Obligations, the occurrence of the Revolving Credit Termination Date
and expiration or termination of this Agreement.
(h) Without limiting Borrowers' rights as set forth in Section
4.2(g) above, the obligation of the Borrowers to immediately reimburse
the Agent for drawings made under Letters of Credit shall be absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement and such Letters of Credit
and the related Applications for Letters of Credit, notwithstanding the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related Documents");
35
(ii) any amendment or waiver of or any consent to
or departure from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense or
other rights which the Borrowers may have at any time against
any beneficiary or any transferee of a Letter of Credit (or
any Persons for whom any such beneficiary or any such
transferee may be acting), Agent, Lenders or any other Person,
whether in connection with the Loan Documents, the Related
Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrowers and any beneficiary or any transferee of a
Letter of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), Agent,
Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect whatsoever; or
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by Agent, with or without notice to or approval by
the Borrowers in respect of any of Borrowers' Obligations
under this Agreement.
4.3 Letter of Credit Fee. The Borrowers agree to pay to the Agent,
for the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, quarterly in arrears on the last Business Day of each March, June,
September and December, beginning June 1999, a fee for each Standby Letter of
Credit, equal to the product of the average daily amount available to be drawn
on such Letter of Credit during such three month period multiplied by one
percent (1.00%). Such fee shall be calculated on the basis of a year of 360 days
for the actual number of days during which Letters of Credit are outstanding.
4.4 Administrative Fees. The Borrowers shall pay to Issuing
Bank such administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as Issuing Bank and the
Borrowers shall agree from time to time.
ARTICLE V
Yield Protection and Illegality
5.1 Additional Costs.
(a) The Borrowers shall promptly pay to the Agent for the
account of a Lender from time to time, without duplication, such
amounts as such Lender may reasonably determine to be necessary to
compensate it for any costs incurred by such Lender which it
determines are attributable to its making or maintaining any Loan or
36
its obligation to make any Loans, or the issuance or maintenance by
Issuing Bank of or any other Lender's Participation in any Letter of
Credit issued hereunder, or any reduction in any amount receivable by
such Lender under this Agreement or the Notes in respect of any of
such Loans, including reductions in the rate of return on a Lender's
capital (such increases in costs and reductions in amounts receivable
and returns being herein called "Additional Costs"), resulting from
any Regulatory Change which: (i) changes the basis of taxation of any
amounts payable to such Lender under this Agreement or the Notes in
respect of any of such Loans (other than taxes imposed on or measured
by the income, revenues or assets); or (ii) imposes or modifies any
reserve, special deposit, or similar requirements relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (other than any such reserve, deposit or
requirement reflected in the Base Rate or the Eurodollar Rate or the
Floating Eurodollar Rate, in each case computed in accordance with the
respective definitions of such terms set forth in Section 1.2 hereof);
or (iii) has or would have the effect of reducing the rate of return
on capital of any such Lender to a level below that which the Lender
could have achieved but for such Regulatory Change (taking into
consideration such Lender's policies with respect to capital
adequacy). Each Lender will notify the Authorized Representative and
the Agent of any event occurring after the Closing Date which would
entitle it to compensation pursuant to this Section 5.1(a) as promptly
as practicable after it obtains knowledge thereof and determines to
request such compensation.
(b) Without limiting the effect of the foregoing provisions of
this Section 5.1, in the event that, by reason of any Regulatory
Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a
category of deposits or other liabilities of the Lender which includes
deposits by reference to which the interest rate on Eurodollar Rate
Loans or Floating Eurodollar Rate Swing Line Loans is determined as
provided in this Agreement or a category of extensions of credit or
other assets of any Lender which includes Eurodollar Rate Loans or
Floating Eurodollar Rate Swing Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets
which it may hold, then, if the Lender so elects by notice to the
other Lenders, the obligation hereunder of such Lender (if SouthTrust)
to make Floating Eurodollar Rate Swing Line Loans, and of any such
Lender to make or convert Base Rate Loans into, Eurodollar Rate Loans
that are the subject of such restrictions shall be suspended until the
date such Regulatory Change ceases to be in effect and the Borrowers
shall, immediately in the case of Floating Eurodollar Rate Swing Line
Loans and on the last day(s) of the then current Interest Period(s)
for outstanding Eurodollar Rate Loans, convert such Eurodollar Rate
Loans into Base Rate Loans and convert such Floating Eurodollar Rate
Swing Line Loans into Swing Line Loans bearing interest at the Base
Rate (a "Base Rate Swing Line Loan"); provided, however, that the
suspension of such obligation and the conversion of any Eurodollar
Rate Loans or Floating Eurodollar Rate Swing Line Loans shall apply
only to any Lender who is affected by such restrictions and who has
provided such notice to the other Lenders, and the obligation of the
other Lenders to make Eurodollar Rate Loans or (if SouthTrust)
Floating Eurodollar Rate Swing Line Loans, and to convert Base Rate
Loans into Eurodollar Rate Loans, shall not be affected by such
restrictions.
37
(c) Determinations by any Lender for purposes of this Section 5.1 of
the effect of any Regulatory Change on its costs of making or
maintaining, or being committed to make Loans, or by Issuing Bank as
issuer of any Letter of Credit of the effect of any Regulatory Change
on its costs in connection with the issuance or maintenance of, or any
other Lender's Participation in, any Letter of Credit issued
hereunder, or on amounts receivable by any Lender in respect of Loans
or Letters of Credit, and of the additional amounts required to
compensate the Lender in respect of any Additional Costs, shall be
conclusive absent manifest error. The Lender requesting such
compensation shall furnish to the Authorized Representative and the
Agent within sixty (60) days of the incurrence of any Additional Costs
for which compensation is sought an explanation of the Regulatory
Change and calculations, in reasonable detail, setting forth such
Lender's determination of any such Additional Costs.
5.2 Suspension of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate for
any Eurodollar Rate Loan or Floating Eurodollar Rate Swing Line Loan for any
Interest Period, the Agent determines (which determination made on a reasonable
basis shall be conclusive absent manifest error) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definition of "Interbank Offered Rate" in Section
1.2 hereof are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining the rate of interest
for such Eurodollar Rate Loan or Floating Eurodollar Rate Swing Line
Loan as provided in this Agreement; or
(b) the relevant rates of interest referred to in the definition
of "Interbank Offered Rate" in Section 1.2 hereof upon the basis of
which the Eurodollar Rate or the Floating Eurodollar Rate for such
Interest Period is to be determined do not adequately reflect the cost
to the Lenders of making or maintaining such Eurodollar Rate Loan for
such Interest Period or, in the case of SouthTrust, such Floating
Eurodollar Rate Swing Line Loan (which determination shall be made on
a reasonable basis by the Agent, and the Person making such
determination shall furnish the Authorized Representative evidence of
the facts leading to such determination);
then the Agent shall give the Authorized Representative prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make Eurodollar Rate Loans or, in the case of SouthTrust, Floating
Eurodollar Rate Swing Line Loan that are subject to such condition, or to
convert Loans into Eurodollar Rate Loans, and the Borrowers shall (i) on the
last day(s) of the then current Interest Period(s) for outstanding Eurodollar
Rate Loans, as applicable, convert such Eurodollar Rate Loans into Base Rate
Loans and (ii) immediately convert such Floating Eurodollar Rate Swing Line Loan
into a Base Rate Swing Line Loan. The Agent shall give the Authorized
Representative notice describing in reasonable detail any event or condition
described in this Section 5.2 promptly following the determination by the Agent
that the availability of Eurodollar Rate Loans or Floating Eurodollar Rate Swing
Line Loan is, or is to be, suspended as a result thereof.
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5.3 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender to honor its
obligation to make or maintain Eurodollar Rate Loans or, in the case of
SouthTrust, Floating Eurodollar Rate Swing Line Loan hereunder, then such Lender
shall promptly notify the Borrowers thereof (with a copy to the Agent) and such
Lender's obligation to make or continue Eurodollar Rate Loans or, in the case of
SouthTrust, Floating Eurodollar Rate Swing Line Loan, or convert Base Rate Loans
into Eurodollar Rate Loans, shall be suspended until such time as such Lender
may again make and maintain Eurodollar Rate Loans or, in the case of SouthTrust,
Floating Eurodollar Rate Swing Line Loan, and such Lender's outstanding
Eurodollar Rate Loans shall be converted into Base Rate Loans in accordance with
Section 2.9 hereof and all Floating Rate Swing Line Loans shall immediately
be converted into Base Rate Swing Line Loans.
5.4 Compensation. The Borrowers shall promptly pay to each Lender,
upon the request of such Lender, such amount or amounts as shall be sufficient
(in the reasonable determination of Lender) to compensate it for any loss, cost
or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Eurodollar Rate
Loan or on a date other than the last day of the Interest Period for
such Eurodollar Rate Loan, including without limitation any prepayment
made pursuant to Section 3.7 hereof and any conversion required
pursuant to Section 5.3 hereof; or
(b) any failure by the Borrowers to borrow a Eurodollar Rate
Loan on the date for such borrowing specified in the relevant Request
for Advance/Interest Rate Election under Article II hereof;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the principal
amount so paid, prepaid or converted or not borrowed for the period from the
date of such payment, prepayment or conversion or failure to borrow or convert
to the last day of the then current Interest Period for such Loan (or, in the
case of a failure to borrow or convert, the Interest Period for such Loan which
would have commenced on the date scheduled for such borrowing or conversion) at
the applicable rate of interest for such Eurodollar Rate Loan provided for
herein over (ii) the Interbank Offered Rate (as reasonably determined by the
Agent) for Dollar deposits of amounts comparable to such principal amount and
maturities comparable to such period. A determination of a Lender as to the
amounts payable pursuant to this Section 5.4 shall be conclusive absent manifest
error. The Lender requesting compensation under this Section 5.4 shall promptly
furnish to the Authorized Representative and the Agent calculations in
reasonable detail setting forth such Lender's determination of the amount of
such compensation.
5.5 Alternate Loan and Lender. (a) In the event any Lender suspends
the making of any Eurodollar Rate Loan pursuant to this Article V (herein a
"Restricted Lender"), the Restricted Lender's Applicable Commitment Percentage
of any Eurodollar Rate Loan shall bear interest at the Base Rate until the
Restricted Lender once again makes available the applicable Eurodollar Rate
Loan. Notwithstanding the provisions of Section 2.2(b) hereof, interest shall be
39
payable to the Restricted Lender at the time and manner as paid to those Lenders
making available Eurodollar Rate Loans.
(b) If the obligation of SouthTrust to make Floating Eurodollar
Rate Swing Line Loans shall be suspended pursuant to this Article V, the
Floating Eurodollar Rate Swing Line Loans shall be automatically on the same
Business Day become Base Rate Swing Line Loans and, unless and until SouthTrust
gives notice as provided below that the circumstances specified in this Article
V that gave rise to such suspension no longer exist:
(i) all payments and prepayments of principal that would
otherwise be applied to such Floating Eurodollar Rate Swing Line Loans
shall be applied instead to Base Rate Swing Line Loans; and
(ii) all Swing Line Loans that would otherwise be made by the
Swing Line Lender as Floating Eurodollar Rate Swing Line Loans shall be
made instead as Base Rate Swing Line Loans.
If SouthTrust gives notice to the Borrowers that the circumstances specified in
this Article V that gave rise to the suspension of Floating Eurodollar Rate
Swing Line Loans pursuant to this Section 5.5 no longer exist (which SouthTrust
agrees to do promptly upon such circumstances ceasing to exist), the Borrowers
may again request, and SouthTrust shall make, Floating Eurodollar Rate Swing
Line Loans.
5.6 Taxes.
(a) All payments by the Borrowers of principal of, and
interest on, the Loans and all other amounts payable hereunder shall
be made free and clear of and without deduction for any present or
future excise, stamp or other taxes, fees, duties, levies, imposts,
charges, deductions, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding (i)
franchise taxes, (ii) any taxes (other than withholding taxes) that
would not be imposed but for a connection between a Lender or the
Agent and the jurisdiction imposing such taxes (other than a
connection arising solely by virtue of the activities of such Lender
or the Agent pursuant to or in respect of this Agreement or any other
Loan Document), (iii) any withholding taxes payable with respect to
payments hereunder or under any other Loan Document under laws
(including, without limitation, any statute, treaty, ruling,
determination or regulation) in effect on the Closing Date, (iv) any
taxes imposed on or measured by any Lender's assets, net income,
receipts or branch profits and (v) any taxes arising after the Closing
Date solely as a result of or attributable to Lender changing its
designated lending office after the date such Lender becomes a party
40
hereto (such non-excluded items being collectively called "Taxes"). In
the event that any withholding or deduction from any payment to be
made by the Borrowers hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then the Borrowers
will
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such
payment to such authority; and
(iii) pay to the Agent for the account of each Lender such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount
such Lender would have received had no such withholding or deduction
been required.
(b) Prior to the date that any Lender organized under
the laws of a jurisdiction outside the United States becomes a party
hereto, such Person shall deliver to the Borrowers and the Agent such
certificates, documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, properly completed,
currently effective and duly executed by such Lender or participant
establishing that such payment is (i) not subject to United States
Federal backup withholding tax and (ii) not subject to United States
Federal withholding tax under the Code because such payment is either
effectively connected with the conduct by such Lender or participant
of a trade or business in the United States or totally exempt from
United States Federal withholding tax by reason of the application of
the provisions of a treaty to which the United States is a party or
such Lender is otherwise exempt.
(c) If any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for the
account of the respective Lender, the required receipts or other
required documentary evidence, all the Borrowers shall jointly and
severally indemnify the Lenders for any incremental Taxes, interest or
penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 5.6, a distribution
hereunder by the Agent or any Lender to or for the account of the
Borrowers shall be deemed a payment on behalf of the Borrowers.
ARTICLE VI
Conditions Precedent
6.1 Conditions of Initial Advance and Issuance of Letters of Credit.
The obligation of the Lenders to make the initial Advance or of SouthTrust to
make any Swing Line Loan is subject to the following conditions precedent:
41
(a) The Agent shall have received on the Closing Date,
in form and substance satisfactory to the Agent and Lenders, the
following:
(i) executed originals of each of this Agreement, the
Notes, the Security Agreement and the other Loan Documents,
together with all schedules and exhibits thereto;
(ii) written opinions of special counsel to the
Borrowers, including special counsel in South Carolina,
North Carolina, Alabama, Pennsylvania and Virginia with
respect to Collateral located in such jurisdictions, dated
the Closing Date, addressed to the Agent and the Lenders in
the form of the opinions rendered by such special counsel
dated on or about April 30, 1998 in connection with the
Existing Agreement or with such changes to such form as are
satisfactory to the Agent;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Borrower certified by its secretary or
assistant secretary as of the Closing Date, appointing the
initial Authorized Representative and approving and adopting
the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers of each Borrower
executing the Loan Documents on behalf of each Borrower,
certified by the secretary or assistant secretary of each
Borrower;
(v) the charter documents of each Borrower certified
as of a recent date by the Secretary of State of its state
of incorporation or certification from the secretary or
assistant secretary of each Borrower as to no change in the
charter documents of such Borrower since the date of the
Existing Agreement;
(vi) the bylaws of each Borrower certified as of the
Closing Date as true and correct by its secretary or
assistant secretary or certification from the secretary or
assistant secretary of each Borrower as to no change in the
bylaws of such Borrower since the date of the Existing
Agreement;
(vii) certificates issued as of a recent date by the
Secretary of State of each of jurisdiction of incorporation
of each Borrower as to the due existence and good standing
of such 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
each 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 Material Adverse Effect;
42
(ix) certificate of an Authorized Representative dated
the Closing Date demonstrating compliance with the financial
covenants contained in Sections 9.1 through 9.5 as of March
31, 1999, substantially in the form of Exhibit H attached
hereto;
(x) evidence of all policies of casualty insurance
required by the Loan Documents with respect to the
Equipment, together with endorsements naming Agent for the
benefit of the Lenders as an additional insured, mortgagee
or loss payee, as applicable;
(xi) executed Uniform Commercial Code financing
statements on Form UCC-1 with respect to the Collateral in
such form and number as requested by the Agent;
(xii) an initial Request for Advance/Interest Rate
Election with respect to the Term Loan;
(xiii) an initial Application for Letters of Credit;
(xiv) all fees payable by the Borrowers on the Closing
Date to the Agent, Issuing Bank and the Lenders;
(xv) UCC search results with respect to the
Collateral showing only those liens and security interests
as are acceptable to the Lenders;
(xvi) [Reserved]
(xvii) such other documents, instruments, certificates
and opinions as the Agent or any Lender may reasonably
request on or prior to the Closing Date in connection with
the consummation of the transactions contemplated hereby.
(b) Each of the following shall have occurred or be true:
(i) there shall not be any action, suit, investigation
or proceeding pending or threatened in any court or before
any arbitrator or governmental authority that purports to
affect (A) any Borrower that could have a Material Adverse
Effect, or (B) any transaction contemplated hereby; and
(ii) no Borrower shall be in default with respect to any
existing financial obligations.
(c) In the good faith judgment of the Agent and the
Lenders:
(i) there shall not have occurred any Material Adverse
Effect since December 31, 1998;
43
(ii) there shall not have occurred any disruption or
adverse change in the financial or capital markets generally
which the Agent, in its sole reasonable discretion, deems
material in connection with the Revolving Credit Facility;
and
(iii) the Agent shall have received and reviewed, with
results satisfactory to the Agent and its counsel, all
information it may reasonably request regarding the
Borrowers.
6.2 Conditions of Loans and Issuance of Letters of Credit. The
obligations of the Lenders or SouthTrust to make any Loans hereunder on or
subsequent to the Closing Date are subject to the satisfaction of the following
conditions:
(a) the Agent, or in the case of Swing Line Loans,
SouthTrust shall have received a Request for Advance/Interest Rate
Election as required by Article II or Article III hereof;
(b) the representations and warranties of the Borrowers set
forth in Article VII hereof 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 or Swing Line Loan, with the same effect as
though such representations and warranties had been made on and as of
such date, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 7.6(a) hereof shall be
deemed to be those financial statements most recently delivered to the
Agent and the Lenders pursuant to Section 8.1 hereof;
(c) in the case of the issuance of a Letter of Credit,
Borrowers shall have executed and delivered to Issuing Bank an
Application for Letter of Credit in form and content acceptable to
Issuing Bank together with such other instruments and documents as it
shall reasonably request;
(d) at the time of each Advance, Swing Line Loan,
conversion, continuation or issuance of each Letter of Credit, as the
case may be, no Default or Event of Default specified in Article X
hereof, shall have occurred and be continuing;
(e) immediately after issuing any Letter of Credit, the
aggregate Letter of Credit Outstandings shall not exceed the Total
Letter of Credit Commitment;
(f) the Borrowers have maintained, on a consolidated
basis, to the reasonable satisfaction of the Agent and the Lenders a
financial condition in which they, considered as a whole, may repay
the Obligations, including each Advance to be made at such time, from
Consolidated EBITDA derived from operations; and
(g) immediately after giving effect to a Revolving Loan,
the aggregate principal balance of all outstanding Revolving Loans for
each Lender and in the aggregate shall not exceed, respectively, (i)
44
such Lender's Revolving Credit Commitment or (ii) the Total Revolving
Credit Commitment.
ARTICLE VII
Representations and Warranties
Each Borrower represents and warrants that:
7.1 Organization and Authority.
(a) Each Borrower is a corporation duly organized and
validly existing under the laws of the jurisdiction of its
incorporation;
(b) Each Borrower (x) has the requisite power and
authority to own its properties and assets and to carry on its
business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction
in which failure so to qualify would have a Material Adverse Effect;
(c) Each Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party; and
(d) when executed and delivered, each of the Loan
Documents to which each Borrower is a party is the legal, valid and
binding obligation or agreement, as the case may be, of such Borrower,
enforceable against such Borrower in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity which may limit the availability of
equitable remedies (whether in a proceeding at law or in equity).
7.2 Loan Documents. The execution, delivery and performance by
each Borrower of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite corporate
action (including any required shareholder approval) of such Borrower
required for the lawful execution, delivery and performance thereof;
(b) do not violate any provisions of (i) applicable
law, rule or regulation, (ii) any order of any court or other agency
of government binding on such Borrower, or its properties, or (iii)
the charter documents or bylaws of such Borrower, except to the extent
such violation would not or would not be reasonably likely to have a
Material Adverse Effect;
45
(c) does not and will not be in conflict with, result
in a breach of or constitute an event of default, or an event which,
with notice or lapse of time, or both, would constitute an event of
default, under any material indenture, agreement or other instrument
to which such Borrower is a party, or by which the properties or
assets of such Borrower are bound;
(d) does not and will not result in the creation or
imposition of any Lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of Borrower except any liens in
favor of the Agent and the Lenders created by the Security Documents.
7.3 Solvency. Each Borrower is Solvent after giving effect
to the transactions contemplated by this Agreement and the other Loan Documents.
7.4 Subsidiaries and Stockholders. None of the Borrowers has
any Subsidiary which is not a Borrower.
7.5 Ownership Interests. None of the Borrowers owns any
interest in any Person other than the Persons listed in Schedule 7.5 hereto.
7.6 Financial Condition.
(a) Giant Cement has furnished to the Agent the audited
consolidated balance sheet of the Borrowers as of December 31, 1998
and the notes thereto and the related consolidated statements of
operations, cash flows, and shareholders' equity for the Fiscal Year
then ended as examined and certified by PricewaterhouseCoopers LLP as
the independent certified public accountants of the Borrowers. Except
as set forth therein, such financial statements (including the notes
thereto), present fairly the consolidated financial position of the
Borrowers, as of the end of such Fiscal Year, all in conformity with
GAAP applied on a Consistent Basis;
(b) since December 31, 1998, there has not occurred any
event, including but not limited to fire, explosion or other accident,
earthquake, flood, drought, storm or other act of God, strike,
lockout, combination of workers or other labor matter, or embargo or
act of a public enemy which has had or could reasonably be expected to
have a Material Adverse Effect;
(c) since December 31, 1998, except as set forth in
Schedule 7.6 hereto, no Borrower has incurred any material
Consolidated Indebtedness that remains outstanding or unsatisfied.
Schedule 7.6 hereto sets forth all Consolidated Indebtedness of the
Borrower and its Subsidiaries.
7.7 Title to Properties. The Borrowers have good and marketable
title to all their real and personal properties, subject to no transfer
restrictions or Liens of any kind, except for (a) the transfer restrictions and
Liens described in Schedule 7.7 attached hereto and incorporated herein by
reference, and (b) Liens permitted under Section 9.7 hereof. Keystone has fee
simple title to its manufacturing facility located in Bath, Pennsylvania; Giant
Cement has fee simple title to its manufacturing facility located in
00
Xxxxxxxxxxx, Xxxxx Xxxxxxxx; and no Borrower leases any facility except as so
indicated on Schedule 2 to the Security Agreement.
7.8 Taxes. The Borrowers have filed or caused to be filed
or obtained extensions of the time to file all federal, state and local tax
returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith and against which reserves have been
established which are satisfactory to the Borrowers' independent certified
public accountants as determined in the normal course of their annual audit of
the Borrowers and evidenced by their most recent opinion delivered pursuant to
and satisfying the standards in Section 8.1(a) hereof, have paid or caused to be
paid all taxes as shown on said returns or on any assessment received by it, to
the extent that such taxes have become due.
7.9 Other Agreements. None of the Borrowers is
(a) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions which could
reasonably be likely to have a Material Adverse Effect; or
(b) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which any Borrower is a
party, which default has, or if not remedied within any applicable
grace period could reasonably be likely to have, a Material Adverse
Effect.
7.10 Litigation. There is no action, suit or proceeding at law
or in equity or by or before any governmental instrumentality or agency or
arbitral body pending, or, to the knowledge of the Borrowers, threatened by or
against any Borrower or affecting any Borrower or any properties or rights of
any Borrower, which could reasonably be likely to have a Material Adverse
Effect.
7.11 Margin Stock. None of the Borrowers owns any "margin stock"
as such term is defined in Regulation U, as amended (12 C.F.R. Part 221), of the
Board. The proceeds of the borrowings made pursuant to Articles II and III
hereof will be used by the Borrowers only for the purposes set forth in Sections
2.12 and 3.5 hereof. None of such proceeds will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute any of the
Loans under this Agreement a "purpose credit" within the meaning of said
Regulation U or Regulation X (12 C.F.R. Part 224) of the Board. Neither the
Borrowers nor any agent acting in their behalf has taken or will take any action
which might cause this Agreement or any of the documents or instruments
delivered pursuant hereto to violate any regulation of the Board or to violate
the Securities Exchange Act of 1934, as amended, or the Securities Act of 1933,
as amended, or any state securities laws, in each case as in effect on the date
hereof.
7.12 Investment Company. None of the Borrowers is an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The application
47
of the proceeds of the Loans and repayment thereof by the Borrowers and the
performance by the Borrowers of the transactions contemplated by this Agreement
will not violate any provision of said Act, or any rule, regulation or order
issued by the Securities and Exchange Commission thereunder, in each case as in
effect on the date hereof.
7.13 Patents, Etc. Each of the Borrowers owns or has the right
to use, under valid license agreements or otherwise, all material patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights necessary to the conduct of its businesses
as now conducted, without known conflict with any patent, license, franchise,
trademark, trade secrets and confidential commercial or proprietary information,
trade name, copyright, rights to trade secrets or other proprietary rights of
any other Person.
7.14 No Untrue Statement. Neither this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrowers in accordance with or pursuant to any Loan Document contains
any misrepresentation or untrue statement of material fact or omits to state a
material fact necessary, in light of the circumstance under which it was made,
in order to make any such representation or statement contained therein not
misleading.
7.15 No Consents, Etc. Neither the respective businesses or
properties of any Borrower, nor any relationship between any Borrower and any
other Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated hereby,
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any governmental or other authority or any
other Person on the part of any Borrower as a condition to the execution,
delivery and performance of, or consummation of the transactions contemplated
by, this Agreement or the other Loan Documents which, if not obtained or
effected, could reasonably be likely to have a Material Adverse Effect or if so,
such consent, approval, authorization, filing, registration or qualification has
been obtained or effected, as the case may be.
7.16 Employee Benefit Plans.
(a) Neither any Borrower nor any ERISA Affiliate maintains
or contributes to, or has any obligation under, any Employee Benefit
Plans other than those identified on Schedule 7.16 attached hereto;
(b) Each Borrower and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
where failure to comply would not result in a Material Adverse Effect
and except for any required amendments for which the remedial
amendment period as defined in Section 401(b) of the Code has not yet
expired. Each Employee Benefit Plan that is intended to be qualified
under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, and each trust related to such
plan has been determined to be exempt under Section 501(a) of the
Code. No material liability has been incurred by the Borrowers or any
48
ERISA Affiliate which remains unsatisfied for any taxes or penalties
with respect to any Employee Benefit Plan or any Multiemployer Plan;
(c) No Pension Plan has been terminated within the six year
period prior to the execution of this Agreement, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code)
been incurred (without regard to any waiver granted under Section 412
of the Code), nor has any funding waiver from the IRS been received or
requested with respect to any Pension Plan, nor have the Borrowers or
any ERISA Affiliate failed to make any contributions or to pay any
amounts due and owing as required by Section 412 of the Code, Section
302 of ERISA or the terms of any Pension Plan prior to the due dates
of such contributions under Section 412 of the Code or Section 302 of
ERISA, nor has there been any event requiring any disclosure under
Section 4041(c)(3)(C), 4063(a) or 4068(f) of ERISA with respect to any
Pension Plan;
(d) Neither any Borrower nor any ERISA Affiliate has:
(i) engaged in a nonexempt prohibited transaction described in Section
406 of ERISA or Section 4975 of the Code, (ii) incurred any liability
to the PBGC which remains outstanding other than the payment of
premiums and there are no premium payments which are due and unpaid,
(iii) failed to make a required contribution or payment to a
Multiemployer Plan or (iv) failed to make a required installment or
other required payment under Section 412 of the Code;
(e) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan;
(f) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of each Borrower after
due inquiry, is threatened concerning or involving any Employee
Benefit Plan.
7.17 No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
7.18 Hazardous Materials. Each Borrower is in compliance with
all applicable Environmental Laws in all material respects, including without
limitation its operations and properties in South Carolina and Pennsylvania. No
Borrower has been notified of any action, suit, proceeding or investigation
which calls into question compliance by such Borrower with any Environmental
Laws that could reasonably be expected to have a Material Adverse Effect, or
which seeks to suspend, revoke or terminate any license, permit or approval
necessary for the generation, handling, storage, treatment or disposal of any
Hazardous Material that could reasonably be expected to have a Material Adverse
Effect. Except as disclosed in the permits set forth on Schedule 7.18, each real
property occupied, leased or operated by any Borrower is free from all Hazardous
Material that could reasonably be expected to have a Material Adverse Effect.
7.19 RICO. None of the Borrowers is engaged in or have not
engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
49
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
7.20 Employment Matters. (a) There are no strikes, work
stoppages, election or decertification petitions or proceedings, unfair labor
charges, equal opportunity proceedings, or other material labor/employee related
controversies or proceedings pending or, to the best knowledge of each Borrower,
threatened against any Borrower or between any Borrower and any of its
employees, other than employee grievances arising in the ordinary course of
business which would not in the aggregate have a Material Adverse Effect.
(b) Each Borrower is in compliance in all material respects
with all applicable laws, rules and regulations pertaining to labor or
employment matters, including without limitation those pertaining to wages,
hours, occupational safety and taxation and there is neither pending or
threatened any material litigation, administrative proceeding nor, to the
knowledge of each Borrower, any investigation, in respect of such matters which,
if decided adversely, could reasonably be likely to have a Material Adverse
Effect.
ARTICLE VIII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, each of the Borrowers will:
8.1 Financial Reports, Etc.
(a) As soon as practical and in any event within 90 days
after the end of each Fiscal Year, deliver or cause to be delivered to
the Agent and each Lender (i) consolidated and consolidating balance
sheets of the Borrowers, and the notes thereto, the related statements
of operations, stockholders' equity and cash flows, and the respective
notes thereto, for such Fiscal Year, setting forth in the case of the
statements comparative financial statements for the preceding Fiscal
Year, all prepared in accordance with GAAP applied on a Consistent
Basis and containing, with respect to the consolidated financial
reports, opinions of PricewaterhouseCoopers LLP, or other such
independent certified public accountants selected by Giant Holding and
approved by the Agent, which are unqualified as to the scope of the
audit performed and as to the "going concern" status of the Borrowers
and are without exception not acceptable to the Required Lenders, and
(ii) a certificate of an Authorized Representative demonstrating
compliance with Sections 9.1, 9.2, 9.3, 9.4 and 9.5 hereof, which
certificate shall be in the form attached hereto as Exhibit H hereof;
(b) as soon as practical and in any event within 45 days
after the end of each quarterly period (except the last reporting
period of the Fiscal Year), deliver to the Agent and each Lender (i)
consolidated balance sheets of the Borrowers as of the end of such
reporting period, the related statements of operations, stockholders'
equity and cash flows for such reporting period and for the period
50
from the beginning of the Fiscal Year through the end of such
reporting period, accompanied by a certificate of an Authorized
Representative to the effect that such financial statements present
fairly the financial position of the Borrowers as of the end of such
reporting period and the results of their operations and the changes
in their financial position for such reporting period, in conformity
with the standards set forth in Section 7.6(a)(ii) hereof with respect
to interim financials, and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to
that required pursuant to Section 8.1(a)(ii) hereof;
(c) together with each delivery of the financial statements
required by Section 8.1(a)(i) hereof, deliver to the Agent and each
Lender a letter from the Borrowers' accountants specified or otherwise
determined as set forth in Section 8.1(a)(i) hereof stating that in
performing the audit necessary to render an opinion on the financial
statements delivered under Section 8.1(a)(i) hereof, they obtained no
knowledge of any Default or Event of Default by the Borrowers in the
fulfillment of the terms and provisions of this Agreement insofar as
they relate to financial matters (which at the date of such statement
remains uncured); and if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature
and period of existence thereof;
(d) promptly upon their becoming available to the
Borrowers, the Borrowers shall deliver to the Agent and each Lender a
copy of (i) all regular or special reports or effective registration
statements which any of the Borrowers shall file with the Securities
and Exchange Commission (or any successor thereto) or any securities
exchange, including without limitation each Annual Report on Form
10-K, each Quarterly Report on Form 10-Q and each Current Report on
Form 8-K, (ii) any proxy statement distributed by any of the Borrowers
to their shareholders, bondholders or the financial community in
general, and (iii) any management letter or other report submitted to
the Board of Directors of Giant Holding by independent accountants in
connection with any annual, interim or special audit of the Borrowers;
(e) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information
regarding Borrowers' operations, business affairs and financial
condition as the Agent or such Lender may reasonably request. The
Agent and the Lenders are hereby authorized to deliver a copy of any
such financial information delivered hereunder to the Lenders (or any
affiliate of any Lender) or to the Agent, to any regulatory authority
having jurisdiction over any of the Lenders pursuant to any written
request therefor, or to any other Person who shall acquire or consider
the assignment of or Participation in any Loan or Letter of Credit
permitted by this Agreement.
8.2 Maintain Properties. Maintain all properties necessary to
its operations in good working order and condition, ordinary wear and tear
excepted, and make all needed repairs, replacements and renewals as are
reasonably necessary to conduct its business in accordance with customary
business practices.
51
8.3 Existence, Qualification, Etc. Do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and
all material rights and franchises, trade names, trademarks and permits and
maintain its license or qualification to do business as a foreign corporation
and good standing in each jurisdiction in which its ownership or lease of
property or the nature of its business makes such license or qualification
necessary except where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect.
8.4 Regulations and Taxes. Comply in all material respects with
or contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves have been
established which are satisfactory to the independent public accountants of the
Borrowers as determined in the normal course of their annual audit of the
Borrowers and evidenced by their most recent opinion delivered pursuant to and
satisfying the standards in Section 8.1(a) hereof.
8.5 Insurance. Keep all of its insurable properties adequately
insured at all times and maintain general public liability insurance at all
times with responsible insurance carriers against loss or damage by fire and
other hazards as are customarily insured against by similar businesses owning
such properties similarly situated. Maintain insurance under all applicable
workers' compensation laws. Each of the casualty policies insuring Collateral
shall provide that the insurer shall give the Agent not less than thirty (30)
days' prior written notice before any such policy shall be terminated, lapse or
be altered in any manner and shall name the Agent as an additional insured or
secured party, as applicable.
8.6 True Books. Maintain proper books of record and account in
which full, true and correct entries will be made of all of its dealings and
transactions as may be required by GAAP, and set up on its books such reserves
as may be required by GAAP with respect to doubtful accounts and all taxes,
assessments, charges, levies and claims and with respect to its business in
general, and include such reserves in all material respects in interim as well
as year-end financial statements.
8.7 Pay Indebtedness to Lenders and Perform Other Covenants.
(a) Make full and timely payment of the principal of and interest on the Notes
and all other Obligations whether now existing or hereafter arising; and (b)
duly comply with and perform all the terms and covenants contained in all Loan
Documents.
8.8 Payment of Other Indebtedness. Pay when due (or within
applicable grace periods) all Indebtedness due third Persons, except when the
amount thereof is being contested in good faith by appropriate proceedings
diligently conducted and with reserves in form and amount reasonably acceptable
to the Agent therefor being set aside on the books of the Borrowers.
8.9 Right of Inspection. Permit any representative designated
by any Lender or the Agent to visit and inspect any of the properties, corporate
books and financial reports of the Borrowers and to discuss its affairs,
finances and accounts with its principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice.
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8.10 Observe all Laws. Conform to and duly observe in all
material respects all laws, rules and regulations and all other valid
requirements of any regulatory authority with respect to the conduct of its
business.
8.11 Officer's Knowledge of Default. Upon any senior officer of
any Borrower obtaining knowledge of any Default or Event of Default hereunder or
under any other obligation of the Borrowers to any Lender, cause such officer or
an Authorized Representative promptly to notify the Agent of the nature thereof,
the period of existence thereof, and what action the Borrowers propose to take
with respect thereto.
8.12 Suits or Other Proceedings. Upon any senior officer of
any Borrower obtaining knowledge of any litigation or other proceedings being
instituted against any of the Borrowers, or any attachment, levy, execution or
other process being instituted against any assets of any of the Borrowers,
making a claim or claims in an aggregate amount greater than, or reasonably
expected to be greater than, $1,000,000 not reasonably expected to be covered by
insurance, promptly deliver to the Agent written notice thereof stating the
nature and status of such litigation, dispute, proceeding, levy, execution or
other process.
8.13 Environmental Compliance. If any of the Borrowers shall
receive notice from any Governmental Authority that any of the Borrowers have
violated any applicable Environmental Laws which could reasonably be likely to
have a Material Adverse Effect, promptly deliver a copy of such notice to the
Agent and use its best efforts to remove or remedy such violation within the
time period prescribed in such notice or, if none, within a reasonable time.
8.14 Indemnification. Each of the Borrowers hereby jointly and
severally agrees to defend, indemnify and hold the Agent and the Lenders
harmless from and against any and all claims, losses, liabilities, damages and
expenses (including, without limitation, cleanup costs and reasonable attorneys'
fees) arising directly or indirectly from, out of or by reason of the handling,
storage, treatment, emission or disposal of any Hazardous Material by any of the
Borrowers or property owned or leased or operated by any of the Borrowers. The
provisions of this Section 8.14 shall survive repayment of the Obligations,
occurrence of the Revolving Credit Termination Date and expiration or
termination of this Agreement for so long as any applicable statute of
limitations period.
8.15 Further Assurances. At the Borrowers' cost and expense, upon
request of the Agent or any Lender, duly execute and deliver or cause to be duly
executed and delivered, to the Agent for the benefit of the Lenders such further
instruments, documents, certificates, financing and continuation statements, and
do and cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Agent to carry out more effectively
the provisions and purposes of this Agreement and the other Loan Documents.
8.16 Employee Benefit Plans. With reasonable promptness, and in
any event within thirty (30) days thereof, give notice of and/or deliver to
Agent copies of (a) the establishment of any new Employee Benefit Plan, (b) the
commencement of contributions to any plan to which any of the Borrowers or any
53
of their ERISA Affiliates were not previously contributing, (c) any material
increase in the benefits of any existing Employee Benefit Plan, (d) each funding
waiver request filed with respect to any Employee Benefit Plan and all
communications received or sent by any of the Borrowers or any ERISA Affiliate
with respect to such request and (e) the failure of any of the Borrowers or any
ERISA Affiliate to make a required installment or payment under Section 302 of
ERISA or Section 412 of the Code by the due date.
8.17 Termination Events. Promptly and in any event within
fifteen (15) days of becoming aware of the occurrence of or forthcoming
occurrence of any (a) Termination Event or (b) "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Pension Plan or any trust created thereunder, deliver to the
Agent a notice specifying the nature thereof, what action the Borrowers have
taken, are taking or propose to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto.
8.18 ERISA Notices. With reasonable promptness but in any event
within fifteen (15) days for purposes of clauses (a), (b) and (c), deliver to
the Agent copies of (a) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code, (b) all notices received by the Borrowers or any
ERISA Affiliate of the PBGC's intent to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan, (c) each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by the Borrowers or
any ERISA Affiliate with the Internal Revenue Service with respect to each
Pension Plan and (d) all notices received by any of the Borrowers or any ERISA
Affiliate from a Multiemployer Plan sponsor concerning the imposition or amount
of withdrawal liability pursuant to Section 4202 of ERISA. The Borrowers will
notify the Agent in writing within five (5) Business Days of any Borrower
obtaining knowledge or reason to know that any Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section 4041(c) of ERISA.
8.19 Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted and to preserve, protect and maintain free
from Liens, other than Liens permitted under Section 9.6 hereof, its material
patents, copyrights, licenses, trademarks, trademark rights, trade names, trade
name rights, trade secrets and know-how necessary or useful in the conduct of
its operations.
8.20 Use of Proceeds. Use the proceeds of the Loans solely for
the purposes specified in Sections 2.12 and 3.5 hereof.
8.21 New Subsidiaries. Simultaneously with the acquisition
or creation of any Subsidiary, or upon any previously existing Persons becoming
a Subsidiary, cause to be delivered to the Agent for the benefit of the Lenders
each of the following:
(i) an amendment to this Agreement executed by
such Subsidiary whereby such Subsidiary becomes a Borrower
in form and substance acceptable to the Agent;
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(ii) an amendment to the Security Instruments
executed by such Subsidiary whereby such Subsidiary grants
to the Agent for the benefit of the Lenders a Lien on all
its Collateral and such related Uniform Commercial Code
financing statements and other instruments as required by
the Agent;
(iii)an amendment to the Subordination Agreement
executed by such Subsidiary whereby such Subsidiary becomes
a party thereto and agrees to subordinate its debt or
obligations to any Borrower to the Obligations contemplated
under any of the Loan Documents;
(iv) an opinion of counsel to such Subsidiary dated as
of the date of delivery of the amendments provided in the
foregoing clauses (i) and (ii) and addressed to the Agent
and the Lenders, in form and substance reasonably acceptable
to the Agent and substantially similar to the opinions of
counsel to the Borrowers delivered on the Closing Date to
the Lenders pursuant to Section 6.1 hereof; and
(v) current copies of the charter or other
organizational documents and bylaws of such Subsidiary,
minutes of duly called and conducted meetings (or duly
effected consent actions) of the Board of Directors, or
appropriate committees thereof (and, if required by such
charter or other organizational documents, bylaws or by
applicable laws, of the shareholders) of such Subsidiary
authorizing the actions and the execution and delivery of
documents described in clauses (i) and (ii) of this Section
8.21 and evidence satisfactory to the Agent (confirmation of
the receipt of which will be provided by the Agent to the
Lenders) that such Subsidiary is Solvent as of such date and
after giving effect to the amendments to this Agreement and
the Security Agreement.
ARTICLE IX
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, none of the Borrowers will:
9.1 Consolidated Indebtedness for Money Borrowed to Consolidated
Tangible Net Worth Ratio. Permit the ratio of Consolidated Indebtedness for
Money Borrowed to Consolidated Tangible Net Worth to be greater than 1.50 to
1.00 at any time.
9.2 Consolidated Fixed Charge Ratio. Permit as of the last day
of any calendar quarter the Consolidated Fixed Charge Ratio to be less than 1.50
to 1.00.
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9.3 Current Ratio. Permit as of the last day of any calendar
quarter the ratio of Consolidated Current Assets to Consolidated Current
Liabilities to be less than 1.25 to 1.00.
9.4 Capital Expenditures. Permit the aggregate amount of
all Capital Expenditures of the Borrowers during any Fiscal Year to exceed twice
the amount of all Depreciation for such Fiscal Year; provided that to the extent
not expended in any Fiscal Year ("Excess Capital Expenditures"), such Excess
Capital Expenditures may not be carried over and expended in any following
Fiscal Year.
9.5 Consolidated Tangible Net Worth. Permit Consolidated
Tangible Worth to be less than (i) commencing on the effective date of Amendment
No. 2, $68,000,000, and (ii) commencing December 31, 1999 and at all times
thereafter, adjusted as of the last day of each Fiscal Year (each such date,
including December 31, 1999, referred to as the "Adjustment Date"), the sum of
(A) the amount of Consolidated Tangible Net Worth required to be maintained
pursuant to this Section 9.5 during the Fiscal Year of the Borrowers ending on
the immediately preceding Adjustment Date, plus (B) 50% of all positive
Consolidated Net Income for the Fiscal Year ending on such Adjustment Date
(including within "Consolidated Net Income" all items otherwise excluded, as
provided for in the definition of "Consolidated Net Income"), plus (C) 100% of
the aggregate Net Proceeds of all equity issuances consummated during the Fiscal
Year ending on such Adjustment Date. For purposes of this calculation, if
Consolidated Net Income of the Borrowers for any Fiscal Year is equal to or less
than zero, there shall be no adjustment based on part (ii)(B) of this Section
9.5.
9.6 Liens. Incur, create or permit to exist any pledge, Lien,
charge or other encumbrance of any nature whatsoever with respect to any real or
personal property now owned or hereafter acquired by any Borrower, other than
(a) Liens existing as of the date hereof and as set forth
in Schedule 7.7 attached hereto;
(b) any Lien created under the Loan Documents;
(c) Liens imposed by law for taxes, assessments or
charges of any Governmental Authority for claims not yet due or which
are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP;
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, repairmen and other Liens
imposed by law or created in the ordinary course of business and in
existence less than 90 days from the date of creation thereof for
amounts not yet due or which are being contested in good faith by
appropriate proceedings diligently conducted and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP;
(e) Liens incurred or deposits made in the ordinary
course of business (including, without limitation, surety bonds and
appeal bonds) in connection with workers' compensation, unemployment
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insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(f) purchase money Liens to secure Indebtedness incurred to
purchase fixed assets or Equipment, provided the Indebtedness
represents not less than 75% nor more than 100% of the purchase price
of such assets as of the date of purchase thereof and no property
other than the assets so purchased secures such Indebtedness;
(g) Liens to secure Indebtedness permitted under Section
9.7(d) hereof, provided such Liens attach only to assets of such newly
acquired Borrower and do not attach to the assets of any other
Borrower;
(h) any Lien existing on any property or asset prior to the
acquisition thereof by any Borrower;
(i) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of any Borrower; and
(j) any Lien represented by the interest of a lessor in
property the subject of a capital lease permitted by this Agreement.
9.7 Consolidated Indebtedness. Incur, create, assume or permit
to exist any Consolidated Indebtedness, howsoever evidenced, except:
(a) Consolidated Indebtedness existing as of the date
hereof and as set forth in Schedule 7.6 attached hereto and
incorporated herein by reference and any extension, renewal or
refinancing thereof that does not increase the principal amount
thereof or interest rate payable thereon from that existing
immediately prior to such extension, renewal or refinancing; provided,
none of the instruments and agreements evidencing or governing such
Indebtedness shall be amended, modified or supplemented after the
Closing Date to change any terms of subordination, repayment or rights
of conversion, put, exchange or other rights from such terms and
rights as in effect on the Closing Date;
(b) Consolidated Indebtedness owing to the Agent or any
Lender in connection with this Agreement, any Note or other Loan
Document;
(c) the endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of
business;
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(d) Consolidated Indebtedness of Borrowers acquired after
the Closing Date, provided that (i) such Consolidated Indebtedness (A)
is recorded in the financial books and records of such Borrower prior
to such acquisition, (B) was not incurred by such Borrower in
anticipation of such acquisition, and (C) is incurred upon terms
determined by Giant Holding in its good faith business judgment to be
more economically advantageous to the Borrowers than the terms of an
Advance hereunder, (ii) immediately after such acquisition and the
incurrence of such Consolidated Indebtedness, no Default or Event of
Default has occurred or is continuing and (iii) the aggregate
principal amount of such Consolidated Indebtedness does not exceed
$7,500,000 at any time;
(e) (i) purchase money Consolidated Indebtedness and (ii)
Consolidated Indebtedness incurred with respect to financing of
Capital Expenditures, collectively under both clause (i) and (ii) not
to exceed an aggregate outstanding amount at any time of $10,000,000;
(f) other Consolidated Indebtedness not otherwise covered
by clauses (a) through (e) above, provided that the aggregate
outstanding principal amount of all such other Consolidated
Indebtedness permitted under this clause (f) shall in no event exceed
$3,000,000 at any time.
9.8 Transfer of Assets. Sell, lease, transfer or otherwise
dispose of any assets of any of the Borrowers other than (a) dispositions of
Inventory in the ordinary course of business; (b) dispositions of equipment that
is substantially worn, damaged, obsolete or, in the judgment of the Borrowers,
no longer best used or useful in its business which, in the aggregate during any
fiscal year, has a fair market value or book value, whichever is less, of
$500,000 or less and is not replaced by equipment having at least equivalent
value; (c) dispositions of equipment provided that (i) such equipment is
replaced by equipment of like kind or function and equal or greater value, (ii)
the replacement equipment shall be acquired prior to or substantially
contemporaneously with any disposition of the equipment that is to be replaced,
and (iii) the replacement equipment shall be free and clear of Liens other than
the Liens permitted by Section 9.6(e) hereof and, if such disposed equipment was
Equipment, such replacement Equipment shall be subject to the security interests
granted to the Agent for the benefit of the Lenders by Keystone Cement Company
and Giant Cement Company pursuant to the Security Agreement; and (d) other
dispositions of assets not exceeding $250,000 in aggregate sales price in any
Fiscal Year.
9.9 Investments; Acquisitions. Make any acquisition or otherwise
purchase, own, invest in or otherwise acquire, directly or indirectly, any stock
or other securities, or make or permit to exist any interest whatsoever in any
other Person or permit to exist any loans or advances to any Person, except that
Borrowers may maintain investments or invest in:
(a) Eligible Securities;
(b) investments existing as of the date hereof and as set
forth in Schedule 9.9 attached hereto;
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(c) accounts receivable arising and trade credit granted
in the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(d) investments in, and loans and other extensions
of credit to, another Borrower provided, however, each loan or
extension of credit is subordinated to the Obligations on terms
satisfactory to the Lenders;
(e) loans to employees in the ordinary course of business
in an aggregate principal amount outstanding at any time of $5000,000;
and
(f) other loans, advances and investments in an aggregate
principal amount at any time outstanding not to exceed $500,000.
Notwithstanding the foregoing, the Borrowers may make Acquisitions so long as:
(i) immediately prior to and immediately after the consummation of such
Acquisition, no Default or Event of Default has occurred and is continuing, (ii)
substantially all of the sales and operating profits generated by such Person
(or assets) so acquired or invested are derived from the same line or lines of
business as then conducted by the Borrowers, (iii) pro forma historical
financial statements as of the end of the most recently completed Fiscal Year
giving effect to such Acquisition are delivered to the Agent not less than five
(5) Business Days prior to the consummation of such Acquisition, together with a
certificate of an Authorized Representative demonstrating compliance with
Sections 9.1, 9.2, 9.3, 9.4 and 9.5 hereof on a pro forma basis after giving
effect to such Acquisition, (iv) the aggregate amount of all Costs of
Acquisition shall not exceed $10,000,000 during any Fiscal Year, and (v) in the
event the Person so acquired is not a Subsidiary, the Borrowers' strategic plan
includes additional investment in such Person sufficient for it to become a
Subsidiary. All expenditures for or acquisitions of fixed or capital assets not
constituting an Acquisition within the meaning of this Agreement shall be deemed
to be Capital Expenditures and therefore subject to the provisions of Section
9.7 hereof.
9.10 Merger or Consolidation. (a) Consolidate with or merge
into any other Person, or (b) liquidate, wind-up or dissolve; provided that any
Borrower may merge into another Borrower and any Borrower may effect by merger
any acquisition complying with Section 9.9 hereof.
9.11 Change in Control.
(a) Cause, suffer or permit (i) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended), to own or control, directly or
indirectly, more than 40% of the outstanding securities of Giant
Holding having voting rights in the election of directors, in each
case to be determined on a fully diluted basis and taking into account
any outstanding securities or contract rights exercisable,
exchangeable or convertible into equity interests or (ii) individuals
who at the Closing Date constituted the Board of Directors of Giant
Holding (together with any new directors whose election by the Board
of Directors or whose nomination for election by the stockholders of
59
Giant Holding was approved by a vote of a majority of the directors of
Giant Holding then still in office who were either directors of Giant
Holding at the Closing Date or whose election or nomination for
election was previously so approved) to cease for any reason to
constitute at least two-thirds (2/3) of the Board of Directors of
Giant Holding then in office.
(b) Cause, suffer or permit any Person or group of Persons
other than any Borrower as of the Closing Date to own or control,
directly or indirectly, any capital stock of any Borrower other than
Giant Holding having voting rights in the election of directors, or
any other equity security or a security convertible into or
exchangeable or redeemable for any equity security, other than the
ownership or control of all the issued and outstanding capital stock
of any Borrower in the event the provisions of Section 9.8 hereof
would not be violated if all assets of such Borrower were sold,
leased, transferred or otherwise disposed.
9.12 Transactions with Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale, leasing or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
(other than another Borrower) of any Borrower, except (a) that an Affiliate may
render services to such Borrower for compensation at the same rates generally
paid by Persons engaged in the same or similar businesses for the same or
similar services and (b) in the ordinary course of and pursuant to the
reasonable requirements of such Borrower's business consistent with past
practice of such Borrower, other than any transactions with Affiliates of any
Borrower which in the aggregate do not exceed $500,000.
9.13 Compliance with ERISA. With respect to any Pension Plan,
Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which
would result in a liability to the Borrowers or any ERISA Affiliate in
excess of $1,000,000;
(b) permit the present value of all benefit liabilities
under all Pension Plans to exceed the current value of the assets of
such Pension Plans allocable to such benefit liabilities by more than
$15,000,000 and in any Fiscal Year make contributions in an amount
less than is required by actuarial calculations;
(c) permit any accumulated funding deficiency in excess
of $250,000 (as defined in Section 302 of ERISA and Section 412 of the
Code) with respect to any Pension Plan, whether or not waived;
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrowers or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto which results in or is likely to
result in a liability in excess of $250,000; or
(e) engage, or permit any Borrower or any ERISA Affiliate
to engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to
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Section 502(i) of ERISA or a tax pursuant to Section 4975 of the Code
in excess of $250,000 may be imposed; or
(f) permit the establishment of any Employee Benefit
Plan providing post-retirement welfare benefits or establish or amend
any Employee Benefit Plan which establishment or amendment could
result in liability to the Borrowers or any ERISA Affiliate or
increase the obligation of the Borrowers or any ERISA Affiliate to a
Multiemployer Plan which liability or increase, individually or
together with all similar liabilities and increases, is in excess of
$1,000,000; or
(g) fail, or permit the Borrowers or any ERISA Affiliate
to fail, to establish, maintain and operate each Employee Benefit Plan
in compliance with the provisions of ERISA, the Code, all applicable
Foreign Benefit Laws and all other applicable laws and the regulations
and official published interpretations thereof in the event such
noncompliance could reasonably be expected to result in a Material
Adverse Effect.
9.14 Fiscal Year. Change its Fiscal Year.
9.15 Limitations on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by any Borrower of real or
personal property which has been or is to be sold or transferred by any Borrower
to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental obligations
of the Borrowers.
9.16 Negative Pledge Clauses. Enter into any agreement with any
Person other than the Agent and the Lenders pursuant to this Agreement and the
other Loan Documents which prohibits or limits the ability of any of the
Borrowers to create, incur, assume or suffer to exist any Lien, upon any of its
property, assets or revenues, whether now owned or hereafter acquired.
ARTICLE X
Events of Default and Acceleration
10.1 Events of Default. If any one or more of the following
events (herein called "Events of Default") shall occur for any reason whatsoever
(and whether such occurrence shall be voluntary or involuntary or come about or
be effected by operation of law or pursuant to or in compliance with any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual
payment of the principal of any Loan, Reimbursement Obligation or
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II, III, IV or V hereof, at
maturity, by acceleration or otherwise; or
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(b) if default shall be made in the due and punctual
payment of any amount of interest on any Loan or of any fees or other
amounts payable to any of the Lenders or the Agent under the Loan
Documents on the date on which the same shall be due and payable and
such default shall continue unremedied for more than two (2) Business
Days; or
(c) if default shall be made in the performance or
observance of any covenant set forth in Sections 8.7(a), 8.9, 8.11,
8.12, 8.19, 8.20 or Article IX hereof;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) or any other agreement
between any of the Borrowers and any Lender creating or relating to
any Consolidated Indebtedness owing by any of the Borrowers to any
Lender and such default shall continue for 30 or more days after the
earlier of receipt of notice of such default by the Authorized
Representative from the Agent or a senior officer of any of the
Borrowers 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 Agent or any of the
Lenders or delivered to the Agent or any of the Lenders in connection
with or pursuant to this Agreement or any of the Obligations, or if
any Loan Document ceases to be in full force and effect (other than by
reason of any action by the Agent), or if without the written consent
of the Agent and the Lenders, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be terminable or be
terminated or become void or unenforceable for any reason whatsoever
(other than in accordance with its terms in the absence of default or
by reason of any action by the Lenders or the Agent); or
(e) if a default shall occur, which is not waived, (i) in
the payment of any principal, interest, premium or other amounts with
respect to any Consolidated Indebtedness (other than the Loans and the
Consolidated Indebtedness owing to any Lender) of any of the Borrowers
in an amount not less than $500,000 in the aggregate outstanding, or
(ii) in the performance, observance or fulfillment of any term or
covenant contained in any agreement or instrument under or pursuant to
which any such Consolidated Indebtedness may have been issued,
created, assumed, guaranteed or secured by any of the Borrowers, and
such default shall continue for more than the period of grace, if any,
therein specified, and if such default shall permit the holder of any
such Indebtedness to accelerate the maturity thereof; or
(f) if any material representation, warranty or other
statement of fact contained herein or any other Loan Document or in
any writing, certificate, report or statement at any time furnished to
the Agent or any Lender by or on behalf of the Borrowers pursuant to
or in connection with this Agreement or the other Loan Documents, or
otherwise, shall be false or misleading in any material respect when
given; or
(g) if any of the Borrowers 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
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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
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 any of the Borrowers 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 any of the Borrowers seeking
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 any of the Borrowers 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
any of the Borrowers 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 any of the
Borrowers takes any action to indicate its consent to or approval of
any such proceeding or petition; or
(i) if (i) any judgment where the amount not reasonably
expected to be covered by insurance (or the amount as to which the
insurer denies liability) is in excess of $250,000 is rendered against
any of the Borrowers and remains unpaid, unstayed, undischarged,
unbonded or undismissed for a period of sixty (60) days, or (ii) there
is any attachment, injunction or execution against any of the
Borrowers' properties for any amount in excess of $250,000, and such
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of sixty (60) days
or (iii) any fine or fines for violation or alleged violation of
Environmental Laws in excess of $2,000,000 in any Fiscal Year is
rendered against any of the Borrowers; or
(j) if any of the Borrowers 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 such Borrower for a period of more than 120 days; or
(k) if any of the Borrowers shall breach any of the
material terms or conditions of any Swap Agreement among the Lenders
and such breach shall continue beyond any grace period, if any,
relating thereto pursuant to its terms;
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 Agent, with the consent of the Required
Lenders, may, and at the direction of the Required Lenders
shall, declare any obligation of the Lenders to make further
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Revolving Loans terminated, whereupon the obligation of each
Lender to make further Revolving Loans and of Issuing Bank
to issue Letters of Credit, hereunder shall terminate
immediately, and (ii) the Agent shall at the direction of
the Required Lenders, at their option, declare by notice to
an Authorized Representative any or all of the Obligations
to be immediately due and payable, and the same, including
all interest accrued thereon and all other obligations of
the Borrowers to the Agent and the Lenders, shall forthwith
become immediately due and payable without presentment,
demand, protest, notice or other formality of any kind, all
of which are hereby expressly waived, anything contained
herein or in any instrument evidencing the Obligations to
the contrary notwithstanding; provided, however, that
notwithstanding the above, if there shall occur an Event of
Default under clause (g) or (h) above, then the obligation
of the Lenders to make Revolving Loans 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 Agent or the Required Lenders or notice
to the Agent or the Lenders;
(b) The Borrowers shall, upon demand of the Agent
or the Required Lenders, deposit cash with the Agent in an
amount equal to the amount of any Letter of Credit
Outstandings, as collateral security for the repayment of
any future drawings or payments under such Letters of
Credit, and such amounts shall be held by the Agent pursuant
to the terms of the applicable Application for Letter of
Credit; and
(c) the Agent and each of the Lenders shall have
all of the rights and remedies available under the Loan
Documents or under any applicable law.
10.2 Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
10.3 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
10.4 No Waiver. No course of dealing between any of the Borrowers
and any Lender or the Agent or any failure or delay on the part of any Lender or
the Agent 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
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and no single or partial exercise of any rights or remedies shall operate as a
waiver or preclude the exercise of any other rights or remedies hereunder or of
the same right or remedy on a future occasion.
10.5 Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article XI hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrowers hereunder shall be applied by the Agent in the following order:
(a) amounts due to Issuing Bank and the Lenders pursuant to
Sections 2.10, 4.3, 4.4 and 12.6 hereof;
(b) amounts due to the Agent pursuant to Section 11.10 hereof;
(c) payments of interest on Loans and Reimbursement Obligations;
(d) payments of principal on Loans and Reimbursement
Obligations;
(e) payment of cash amounts to the Agent in respect of Letters
of Credit Outstandings pursuant to Section 10.1(B) hereof;
(f) amounts due to the Lenders pursuant to Sections 8.14 and
12.10 hereof;
(g) payments of all other amounts due under this Agreement,
if any, to be applied for the ratable benefit of the Lenders; and
(h) any surplus remaining after application as provided for
herein, to the Borrowers or otherwise as may be required by
applicable law.
ARTICLE XI
The Agent
11.1 Appointment. Each Lender hereby irrevocably designates and
appoints SouthTrust as the Agent of the Lenders under this Agreement, and each
of the Lenders hereby irrevocably authorizes SouthTrust as the Agent for such
Lender, to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers as are expressly
delegated to the Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. The Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any of the Lenders, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent.
11.2 Attorneys-in-fact. The Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
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The Agent shall not be responsible for the negligence of any agents or
attorneys-in-fact selected by it with reasonable care.
11.3 Limitation on Liability. Neither the Agent nor any of its
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
shall be responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any of the Borrowers or any
officer or representative thereof contained in this Agreement or in any of the
other Loan Documents, or in any certificate, report, statement or other document
referred to or provided for in or received by the Agent under or in connection
with this Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any of the other Loan
Documents, or for any failure of any of the Borrowers to perform its obligations
thereunder, or for any recitals, statements, representations or warranties made,
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any collateral. The Agent shall not be under any obligation to
any of the Lenders to ascertain or to inquire as to the observance or
performance of any of the terms, covenants or conditions of this Agreement or
any of the other Loan Documents on the part of any of the Borrowers or to
inspect the properties, books or records of any of the Borrowers.
11.4 Reliance. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any Note, writing, resolution, notice, consent
certificate, affidavit, letter, cablegram, telegram, telecopy or telex message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrowers), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless an Assignment shall have been filed with
and accepted by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall first receive
advice or concurrence of the Lenders or the Required Lenders as provided in this
Agreement or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all present and future holders of the Notes.
11.5 Each Lender expressly acknowledges that neither the Agent nor
any of its affiliates has made any representations or warranties to it and that
no act by the Agent hereafter taken, including any review of the affairs of the
Borrowers, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the financial condition, creditworthiness,
affairs, status and nature of the Borrowers and made its own decision to enter
into this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
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and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and to make such investigation as it deems necessary to
inform itself as to the status and affairs, financial or otherwise, of each of
the Borrowers. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business of
each of the Borrowers which may come into the possession of the Agent or any of
its affiliates.
11.6 Indemnification. Each of the Lenders agrees to indemnify the
Agent in its capacity as such (to the extent not reimbursed by the Borrowers and
without limiting any obligations of the Borrowers so to do), ratably according
to the respective principal amount of the Notes and Participations held by them
(or, if no Notes or Participations are outstanding, ratably in accordance with
their respective Applicable Commitment Percentages as then in effect) from and
against any and all liabilities, obligations, losses (excluding any losses
suffered by the Agent as a result of Borrowers' failure to pay any fee owing to
the Agent), damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time (including
without limitation at any time following the payment of the Notes) be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of this Agreement, the other Loan Documents or any other document
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted by the Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence, fraud, intentional tortious conduct or willful misconduct. The
agreements in this subsection shall survive the payment of the Obligations and
the termination of this Agreement.
11.7 Lender. The Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with each of the
Borrowers as though it were not the Agent hereunder. With respect to its Loans
made or renewed by it and any Note issued to it, the Agent shall have the same
rights and powers under this Agreement as any Lender and may exercise the same
as though it were not the Agent, and the terms "Lender" and "Lenders" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity.
11.8 Resignation. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders may appoint, with the consent, so long as
there shall not have occurred and be continuing a Default or Event of Default,
of the Borrowers, which consent shall not be unreasonably withheld, a successor
Agent for the Lenders, which successor Agent shall be a commercial bank
organized under the laws of the United States or any state thereof, having a
combined surplus and capital of not less than $500,000,000, whereupon such
successor Agent shall succeed to the rights, powers and duties of the former
Agent and the obligations of the former Agent shall be terminated and canceled,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement; provided, however, that the former Agent's
resignation shall not become effective until such successor Agent has been
appointed and has succeeded of record to all right, title and interest in any
collateral held by the Agent; provided, further, that if the Required Lenders
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and, if applicable, the Borrowers cannot agree as to a successor Agent within
ninety (90) days after such resignation, the Agent shall appoint a successor
Agent which satisfies the criteria set forth above in this Section 11.8 for a
successor Agent and the parties hereto agree to execute whatever documents are
necessary to effect such action under this Agreement or any other document
executed pursuant to this Agreement; provided, however that in such event all
provisions of this Agreement and the Loan Documents, shall remain in full force
and effect. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XI shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
11.9 Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article V) which results in its receiving more than its pro rata share of the
aggregate payments with respect to all of the Obligations (other than any
payment pursuant to Article V), then (a) such Lender shall be deemed to have
simultaneously purchased from the other Lenders a share in their Obligations so
that the amount of the Obligations held by each of the Lenders shall be pro rata
and (b) such other adjustments shall be made from time to time as shall be
equitable to insure that the Lenders share such payments ratably; provided,
however, that for purposes of this Section 11.9 the term "pro rata" shall be
determined with respect to the Revolving Credit Commitment of each Lender and to
the Total Revolving Credit Commitments after subtraction in each case of
amounts, if any, by which any such Lender has not funded its share of the
outstanding Loans, Participations and Obligations. If all or any portion of any
such excess payment is thereafter recovered from the Lender which received the
same, the purchase provided in this Section 11.9 shall be rescinded to the
extent of such recovery, without interest. The Borrowers expressly consent to
the foregoing arrangements and agree that each Lender so purchasing a portion of
the other Lenders' Obligations may exercise all rights of payment (including,
without limitation, all rights of set-off, banker's lien or counterclaim) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
11.10 Fees. The Borrowers agree to pay to the Agent, for its
individual account, an annual Agent's fee as from time to time agreed to by the
Borrowers and Agent in writing.
ARTICLE XII
Miscellaneous
12.1 Confidentiality. Each Lender agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Borrowers and provided to it by any Borrower or by the Agent on
the Borrowers' behalf under this Agreement or any other Loan Document, and
neither such Lender nor any of its Affiliates shall use any such information
other than in connection with or in enforcement of this Agreement and the other
Loan Documents or in connection with other business now or hereafter existing or
contemplated with any Borrower; except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by such Lender, or (ii) was or becomes available on a non-confidential basis
from a source other than a Borrower, provided that such source is not bound by a
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confidentiality agreement with any Borrower known to such Lender; provided,
however, that any Lender may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which such Lender
is subject or in connection with an examination of such Lender by any such
authority; (B) pursuant to subpoena or other court process; (C) when required to
do so in accordance with the provisions of any applicable requirement of law;
(D) to the extent reasonably required in connection with any litigation or
proceeding to which the Agent or any Lender or any of their respective
Affiliates may be party; (E) to the extent reasonably required in connection
with the exercise of any remedy hereunder or under any other Loan Document; (F)
to such Lender's independent auditors and other professional advisors; (G) to
any participant or assignee of any Lender, actual or potential, provided that
such Person agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder ; (H) as to any Lender or its
Affiliate, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which any Borrower is party or is deemed
party with such Lender or such Affiliate; and (I) to its Affiliates.
12.2 Assignments and Participations.
(a) At any time after the Closing Date each Lender may, with
the prior consent of the Agent and the Borrowers, which consents shall
not be unreasonably withheld, assign to one or more banks or financial
institutions all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of the Note
payable to its order); provided, that (i) each such assignment shall
be of a constant and not a varying percentage of all of the assigning
Lender's rights and obligations (including the Revolving Loans and
Participations) under this Agreement, (ii) for each assignment
involving the issuance and transfer of a Note, the assigning Lender
shall execute an Assignment and Acceptance and the Borrowers hereby
consent to execute a replacement Note to give effect to the
assignment, (iii) the minimum Revolving Credit Commitment and Term
Loan Commitment which shall be assigned is $5,000,000 (together with
which the assigning Lender's applicable portion of Participations and
the Letter of Credit Commitment shall also be assigned), (iv) such
assignee shall have an office located in the United States, (v) an
assignment (other than an assignment of 100% of its Interest) by
Issuing Bank shall not include any portion of the obligation to issue
Letters of Credit, and (vi) no consent of the Borrowers or the Agent
shall be required in connection with any assignment by a Lender to
another Lender or to such Lender's affiliate. Upon such execution,
delivery, approval and acceptance, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder or under such Note have been assigned or
negotiated to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and a holder of such Note
and (y) the assignor thereunder shall, to the extent that rights and
obligations hereunder or under such Note have been assigned or
negotiated by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this
Agreement. Any Lender who makes an assignment (other than an
assignment pursuant to clause (v) above) shall pay to the Agent a
one-time administrative fee of $5,000.00 which fee shall not be
reimbursed by the Borrowers.
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(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i)
the assignment made under such Assignment and Acceptance is made under
such Assignment and Acceptance without recourse; (ii) such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any of the
Borrowers or the performance or observance by any of the Borrowers of
any of its obligations under any Loan Document or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of
the financial statements delivered pursuant to Section 7.6(a) or
Section 8.1, as the case may be, and such other Loan Documents and
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement, the Notes and the other
Loan Documents as are delegated to the Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender and a
holder of such Notes.
(c) The Agent shall maintain at its address referred to herein
a copy of each Assignment and Acceptance delivered to and accepted by
it.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender, the Agent shall give prompt notice thereof to
the Authorized Representative.
(e) Nothing herein shall prohibit any Lender from pledging or
assigning, without notice or consent, any Note to any Federal Reserve
Bank in accordance with applicable law.
(f) Each Lender may sell participations at its expense to one or
more banks or other entities as to all or a portion of its rights and
obligations under this Agreement; provided, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain
the holder of any Note issued to it for the purpose of this Agreement,
(iv) such participations shall be in a minimum amount of $1,000,000
and shall include an allocable portion of such Lender's Participation,
and (v) each of the Borrowers, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and
with regard to any and all payments to be made under this Agreement;
provided, that the participation agreement between a Lender and its
participants may provide that such Lender will obtain the approval of
such participant prior to such Lender's agreeing to any amendment or
waiver of any provisions of this Agreement which would (A) extend the
maturity of any Note, (B) reduce the interest rate hereunder or (C)
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increase the Revolving Credit Commitment or Term Loan Commitment of
the Lender granting the participation, and (vi) the sale of any such
participations which require any of the Borrowers to file a
registration statement with the United States Securities and Exchange
Commission or under the securities regulations or laws of any state
shall not be permitted.
(g) None of the Borrowers may assign any rights, powers,
duties or obligations under this Agreement or the other Loan Documents
without the prior written consent of all the Lenders.
12.3 Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective on the day on which delivered to
such party (against receipt therefor) at the address set forth below or such
other address as such party shall specify to the other parties in writing (or,
in the case of notice by telecopy, telegram or telex (where the receipt of such
message is verified by return) expressly provided for hereunder, when received
at such telecopy or telex number as may from time to time be specified in
written notice to the other parties hereto or otherwise received), or if sent
prepaid by certified or registered mail return receipt requested on the fifth
Business Day after the day on which mailed, addressed to such party at said
address:
(a) if to any of the Borrowers:
Giant Cement Holding, Inc.
000-X Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
and a copy to:
Keystone Cement Company
Xxxx Xxxxxx Xxx X
Xxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx
President and CEO
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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(b) if to the Agent:
SouthTrust Bank, National Association
000 Xxxx XxXxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
SouthTrust Bank, National Association
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment and
Acceptance.
12.4 Setoff. Each of the Borrowers agrees that the Agent and each
Lender shall have a lien for all the Obligations of the Borrowers upon all
deposits or deposit accounts, of any kind, or any interest in any deposits or
deposit accounts thereof, now or hereafter pledged, mortgaged, transferred or
assigned to the Agent or such Lender or otherwise in the possession or control
of the Agent or such Lender (other than for safekeeping) for any purpose for the
account or benefit of such Borrower and including any balance of any deposit
account or of any credit of such Borrower with the Agent or such Lender, whether
now existing or hereafter established, hereby authorizing the Agent and each
Lender at any time or times with or without prior notice to apply such balances
or any part thereof to such of the Obligations of the Borrowers to the Lenders
then past due and in such amounts as they may elect, and whether or not the
collateral or the responsibility of other Persons primarily, secondarily or
otherwise liable may be deemed adequate. For the purposes of this paragraph, all
remittances and property shall be deemed to be in the possession of the Agent or
such Lender as soon as the same may be put in transit to it by mail or carrier
or by other bailee.
12.5 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the execution and delivery to the Lenders of this Agreement and the Notes and
shall continue in full force and effect so long as any of Obligations remain
outstanding or any Lender has any commitment hereunder or the Borrowers have
continuing obligations hereunder unless otherwise provided herein. Whenever in
this Agreement, any of the parties hereto is referred to, such reference shall
be deemed to include the successors and permitted assigns of such party and all
covenants, provisions and agreements by or on behalf of the Borrowers which are
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contained in this Agreement, the Notes and the other Loan Documents shall inure
to the benefit of the successors and permitted assigns of the Lenders or any of
them.
12.6 Expenses. Each of the Borrowers jointly and severally agrees
(a) to pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation and execution
of, and any amendment, supplement or modification to, this Agreement or any of
the other Loan Documents (including travel expenses relating to closing), and
the consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agents, (b) to pay or reimburse the Agent and each of the Lenders for all their
costs and expenses incurred in connection with the enforcement (only from and
after the occurrence of a Default or Event of Default) or preservation of any
rights under this Agreement and the other Loan Documents, including without
limitation, the reasonable fees and disbursements of their counsel and any
payments in indemnification or otherwise payable by the Lenders to the Agent
pursuant to the Loan Documents and (c) to pay, indemnify and hold the Agent and
each of the Lenders harmless from any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any failure to pay or
delay in paying, documentary, stamp, excise and other similar taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of this Agreement or any other Loan Documents, or
consummation of any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement or any other Loan Documents.
12.7 Amendments. Notwithstanding any provision of the other Loan
Documents to the contrary, no amendment, modification or waiver of any provision
of this Agreement or any of the Loan Documents and no consent by the Lenders to
any departure therefrom by any of the Borrowers shall be effective unless such
amendment, modification or waiver shall be in writing and signed by the Agent,
shall have been approved by the Required Lenders through their written consent,
and the same shall then be effective only for the period and on the conditions
and for the specific instances and purposes specified in such writing; provided,
however, that, no such amendment, modification or waiver
(i) (a) which changes, extends or waives any provision of
Section 11.9 or this Section 12.7, the amount of or the due date
of any scheduled installment of or the rate of interest or fees
payable on any Obligation, (b) which (X) changes, (Y) extends or
(Z) waives more than once, any provision of Sections 9.1, 9.2,
9.3, 9.4 or 9.5, (c) which changes the definition of Required
Lenders, (d) which permits an assignment by any of the Borrowers
of its Obligations hereunder, (e) which reduces the required
consent of Lenders provided hereunder, (f) which increases or
decreases the Revolving Credit Commitment, Term Loan Commitment
or the Letter of Credit Commitment of any Lender, (g) which
releases any Borrower or other obligor with respect to the
Obligations, (h) which releases any Collateral other than as
contemplated in the Loan Documents, (i) which extends the
Revolving Credit Termination Date or the Term Loan Termination
Date, (j) which waives any Default or Event of Default under
Section 10.1(g) or (h) hereof or (k) which waives any condition
to the making of any Loan shall be effective unless in writing
and signed by each of the Lenders; or
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(ii) which affects the rights, privileges, immunities or
indemnities of the Agent shall be effective unless in writing and
signed by the Agent.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Agent and the Lenders, execution by the Agent shall not be deemed
conclusive evidence that the Agent has obtained the written consent of the
Required Lenders. No notice to or demand on any of the Borrowers in any case
shall entitle any of the Borrowers to any other or further notice or demand in
similar or other circumstances, except as otherwise expressly provided herein.
No delay or omission on any Lender's or the Agent'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.
12.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
12.9 Termination. The termination of this Agreement shall not affect
any rights of any of the Borrowers, the Lenders or the Agent or any obligation
of any of the Borrowers, the Lenders or the Agent, arising prior to the
effective date of such termination, and the provisions hereof shall continue to
be fully operative until all transactions entered into or rights created or
obligations incurred prior to such termination have been fully disposed of,
concluded or liquidated and the Obligations arising prior to or after such
termination have been irrevocably paid in full. The rights granted to the Agent
for the benefit of the Lenders hereunder and under the other Loan Documents
shall continue in full force and effect, notwithstanding the termination of this
Agreement, until all of the Obligations have been paid in full after the
termination hereof (other than Obligations in the nature of continuing
indemnities or expense reimbursement obligations not yet due and payable) or the
Borrowers have furnished the Lenders and the Agent with an indemnification
satisfactory to the Agent and each Lender with respect thereto. All
representations, warranties, covenants, waivers and agreements contained herein
shall survive termination hereof until payment in full of the Obligations unless
otherwise provided herein. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and each of the Borrowers shall be liable to, and shall indemnify
and hold such Lender harmless for, the amount of such payment surrendered until
such Lender shall have been finally and irrevocably paid in full. The provisions
of the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Lenders' rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
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12.10 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF SOUTH CAROLINA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) EACH 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 MECKLENBURG OF NORTH CAROLINA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER EXPRESSLY
WAIVES ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING
OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR
PROCEEDING, AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(c) EACH 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 SUCH BORROWER
PROVIDED IN SECTION 10.2 HEREOF, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NORTH
CAROLINA.
(d) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE A LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN
THE COURTS OF ANY PLACE WHERE ANY BORROWER OR ANY OF THE BORROWERS'
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(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
75
BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH BORROWER 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 EACH BORROWER HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
12.11 Indemnification. In consideration of the execution and delivery
of this Agreement by the Agent and each Lender and the extension of the
Revolving Credit Commitments and the Letter of Credit Commitments, each of the
Borrowers hereby jointly and severally indemnifies, exonerates and holds the
Agent and each Lender and each of their respective officers, directors,
employees and agents (collectively, the "Indemnified Parties") free and harmless
from and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to the execution, delivery, enforcement performance or administration
of this Agreement and the other Loan Documents, or any transaction financed or
to be financed in whole or in part, directly or indirectly, or supported by any
Letter of Credit, except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the gross negligence or
willful misconduct of such particular Indemnified Party and if and to the extent
that the foregoing undertaking may be unenforceable for any reason, each of the
Borrowers hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The provisions of this Section 12.11 shall survive repayment of
the Obligations, occurrence of the Revolving Credit Termination Date and
expiration or termination of this Agreement.
12.12 Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular Section or provisions hereof, unless so expressly specified. As used
herein, the singular shall include the plural, and the masculine shall include
the feminine or a neutral gender, and vice versa, whenever the context requires.
12.13 Severability. If any provision of this Agreement or the
other Loan Documents shall be determined to be illegal or invalid as to one or
more of the parties hereto, then such provision shall remain in effect with
respect to all parties, if any, as to whom such provision is neither illegal nor
invalid, and in any event all other provisions hereof shall remain effective and
binding on the parties hereto.
12.14 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
76
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.
12.15 Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any term of this
Agreement, the terms and provisions of this Agreement shall control.
12.16 Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under North Carolina 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
Borrowers shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrowers to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrowers.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.17 Joint and Several Obligations. All obligations and liabilities
incurred by the Borrowers hereunder and under any other Loan Document, including
without limitation payment of any Obligation, shall be joint and several among
the Borrowers.
[Signature pages follow.]
77
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.
GIANT CEMENT HOLDING, INC.
GIANT CEMENT COMPANY
KEYSTONE CEMENT COMPANY
GIANT RESOURCE RECOVERY COMPANY,INC.
GCHI INVESTMENTS, INC.
GIANT CEMENT NC, INC.
SOLITE HOLDING, INC.
SOLITE CORPORATION
M&M CHEMICAL & EQUIPMENT CO., INC.
LIGHTWEIGHT BLOCK COMPANY,
INCORPORATED
GIANT RESOURCE RECOVERY, INC.
ATTEST: By:
Name: Xxxxx X. Xxxxxx
______________________ Title: Vice President
Xxxxxx Xxxxxxxxx,
Assistant Secretary
[CORPORATE SEAL]
Signature page 1 of 4
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
Name: Xxxxxxx X. Xxxx III
Title: Vice President
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
as Lender
By:
Name: Xxxxxxx X. Xxxx III
Title: Vice President
Signature page 2 of 4
WACHOVIA BANK, N.A., as Lender
By:
Name: Xxxx X. Xxxxxxx
Title: Vice President
Signature page 3 of 4
BRANCH BANKING AND TRUST COMPANY, as Lender
By:
Name: Xxxxx X. Xxxxx
Title: City Executive
Signature page 4 of 4
