EXHIBIT 2.5
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
AMERISTEEL CORPORATION,
as Borrower,
and
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender,
and
SUNTRUST BANK,
as Syndication Agent and as Lender,
and
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as Lender,
and
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
as Collateral Agent and as Lender,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
September 13, 0000
XXXX XX XXXXXXX SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I
---------
Definitions and Terms
1.1 Amendment and Restatement.............................................3
1.2 Definitions...........................................................3
1.3 Rules of Interpretation..............................................27
ARTICLE II
----------
The Credit Facilities
2.1 Term Loan............................................................30
2.2 Revolving Loans......................................................31
2.3 Use of Proceeds......................................................34
2.4 Notes................................................................34
2.5 Swing Line...........................................................35
ARTICLE III
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Letters of Credit
3.1 Letters of Credit....................................................37
3.2 Reimbursement and Participations.....................................37
ARTICLE IV
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Eurodollar Funding, Fees, and Payment Conventions
4.1 Interest Rate Options................................................41
4.2 Conversions and Elections of Subsequent Interest Periods.............41
4.3 Payment of Interest..................................................42
4.4 Prepayments of Eurodollar Rate Loans.................................42
4.5 Manner of Payment....................................................42
4.6 Fees.................................................................43
4.7 Pro Rata Payments....................................................44
4.8 Computation of Rates and Fees........................................44
4.9 Deficiency Advances; Failure to Purchase Participations..............44
4.10 Intraday Funding.....................................................45
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ARTICLE V
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Security
5.1 Security.............................................................47
5.2 Further Assurances...................................................47
5.3 Information Regarding Collateral.....................................48
ARTICLE VI
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Change in Circumstances
6.1 Increased Cost and Reduced Return....................................49
6.2 Limitation on Types of Loans.........................................50
6.3 Illegality...........................................................51
6.4 Treatment of Affected Loans..........................................51
6.5 Compensation.........................................................52
6.6 Taxes................................................................52
ARTICLE VII
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Conditions to Making Loans and Issuing Letters of Credit
7.1 Conditions of Term Loan and Initial Advance..........................55
7.2 Conditions of Revolving Loans and Letter of Credit...................57
7.3 Supplements to Schedules.............................................58
ARTICLE VIII
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Representations and Warranties
8.1 Organization and Authority...........................................60
8.2 Loan Documents.......................................................60
8.3 Solvency.............................................................61
8.4 Subsidiaries and Stockholders........................................61
8.5 Ownership Interests..................................................61
8.6 Financial Condition..................................................61
8.7 Title to Properties..................................................62
8.8 Taxes................................................................62
8.9 Other Agreements.....................................................62
8.10 Litigation...........................................................62
8.11 Margin Stock.........................................................63
8.12 Investment Company...................................................63
8.13 Patents, Etc.........................................................63
8.14 No Untrue Statement..................................................63
8.15 No Consents, Etc.....................................................64
8.16 Employee Benefit Plans...............................................64
8.17 No Default...........................................................65
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8.18 Environmental Laws...................................................65
8.19 Employment Matters...................................................66
8.20 RICO.................................................................66
ARTICLE IX
----------
Affirmative Covenants
9.1 Financial Reports, Etc...............................................67
9.2 Maintain Properties..................................................68
9.3 Existence, Qualification, Etc........................................69
9.4 Regulations and Taxes................................................69
9.5 Insurance............................................................69
9.6 True Books...........................................................69
9.7 Right of Inspection..................................................69
9.8 Observe all Laws.....................................................70
9.9 Governmental Licenses................................................70
9.10 Covenants Extending to Other Persons.................................70
9.11 Officer's Knowledge of Default.......................................70
9.12 Suits or Other Proceedings...........................................70
9.13 Notice of Environmental Complaint or Condition.......................70
9.14 Environmental Compliance.............................................71
9.15 Indemnification......................................................71
9.16 Further Assurances...................................................71
9.17 Employee Benefit Plans...............................................71
9.18 Continued Operations.................................................72
9.19 New Subsidiaries.....................................................72
ARTICLE X
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Negative Covenants
10.1 Financial Covenants..................................................76
10.2 Acquisitions.........................................................76
10.3 Capital Expenditures.................................................77
10.4 Liens................................................................77
10.5 Indebtedness.........................................................78
10.6 Transfer of Assets...................................................79
10.7 Investments..........................................................79
10.8 Merger or Consolidation..............................................80
10.9 Restricted Payments..................................................80
10.10 Transactions with Affiliates.........................................81
10.11 Compliance with ERISA, the Code and Foreign Benefit Laws.............81
10.12 Fiscal Year..........................................................82
10.13 Dissolution, etc.....................................................82
10.14 Limitations on Sales and Leasebacks..................................82
10.15 Change in Control....................................................82
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10.16 Rate Hedging Obligations.............................................82
10.17 Negative Pledge Clauses..............................................82
10.18 Prepayments, Etc. of Indebtedness....................................83
ARTICLE XI
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Events of Default and Acceleration
11.1 Events of Default....................................................84
11.2 Agent to Act.........................................................87
11.3 Cumulative Rights....................................................87
11.4 No Waiver............................................................87
11.5 Allocation of Proceeds...............................................87
ARTICLE XII
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The Agent
12.1 Appointment, Powers, and Immunities..................................89
12.2 Reliance by Agent....................................................90
12.3 Defaults.............................................................90
12.4 Rights as Lender.....................................................90
12.5 Indemnification......................................................91
12.6 Non-Reliance on Agent and Other Lenders..............................91
12.7 Resignation of Agent.................................................91
ARTICLE XIII
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Miscellaneous
13.1 Assignments and Participations.......................................93
13.2 Notices..............................................................95
13.3 Right of Set-off; Adjustments........................................96
13.4 Survival.............................................................97
13.5 Expenses.............................................................97
13.6 Amendments and Waivers...............................................97
13.7 Counterparts; Facsimile Signatures...................................98
13.8 Termination..........................................................98
13.9 Indemnification; Limitation of Liability.............................99
13.10 Severability.........................................................99
13.11 Entire Agreement.....................................................99
13.12 Agreement Controls..................................................100
13.13 Usury Savings Clause................................................100
13.14 Payments............................................................100
13.15 Governing Law; Waiver of Jury Trial.................................101
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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-1 Form of Borrowing Notice...................................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice.......................E-1
EXHIBIT F-1 Form of Revolving Note.....................................F-1-1
EXHIBIT F-2 Form of Term Note..........................................F-2-1
EXHIBIT F-3 Form of Swing Line Note....................................F-3-1
EXHIBIT G Form of Opinion of Borrower's Counsel........................G-1
EXHIBIT H Compliance Certificate.......................................H-1
EXHIBIT I Form of Facility Guaranty....................................I-1
EXHIBIT J Form of Security Agreement...................................J-1
EXHIBIT K Form of Pledge Agreement.....................................K-1
EXHIBIT L Form of Mortgage ............................................L-1
Schedule 5.3 Information Regarding Collateral.............................S-1
Schedule 8.4 Subsidiaries and Investments in Other Persons................S-2
Schedule 8.6 Indebtedness.................................................S-3
Schedule 8.7 Liens........................................................S-4
Schedule 8.8 Tax Matters..................................................S-5
Schedule 8.10 Litigation...................................................S-6
Schedule 8.18 Environmental Matters .......................................S-7
Schedule 9.5 Insurance ...................................................S-8
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
September 13, 2000 (the "Agreement"), is made by and among AMERISTEEL
CORPORATION, a Florida corporation having its principal place of business in
Tampa, Florida (the "Borrower"), BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, in its
capacity as a Lender ("Bank of America"), and each other financial institution
executing and delivering a signature page hereto and each other financial
institution which may hereafter execute and deliver an instrument of assignment
with respect to this Agreement pursuant to Section 13.1 (hereinafter such
financial institutions may be referred to individually as a "Lender" or
collectively as the "Lenders"), and BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, in its
capacity as administrative agent for the Lenders (in such capacity, and together
with any successor agent appointed in accordance with the terms of Section 12.7,
the "Administrative Agent"), THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK
BRANCH, in its capacity as collateral agent for the Lenders (in such capacity,
the "Collateral Agent") and, together with the Administrative Agent, the
"Agents");
W I T N E S S E T H:
WHEREAS, the Borrower, certain lenders (the "Original Lenders") and The
Bank of Tokyo, Ltd., New York Branch, as agent (the "Original Agent"), have
previously entered into a Credit Agreement dated June 9, 1995 (as amended, the
"Original Agreement") pursuant to which the Original Lenders made available to
the Borrower a revolving credit facility of up to $140,000,000, which revolving
credit facility was evidenced by revolving notes dated June 9, 1995; and
WHEREAS, the obligations of the Borrower under the Original Agreement
were secured by certain assets of the Borrower as described in the Security
Agreement (as defined in the Original Agreement) between the Borrower and the
Original Agent; and
WHEREAS, at the request of the Borrower, the Agents and the Lenders
party thereto (the "Prior Lenders") amended and restated the Original Agreement
in its entirety by that certain Amended and Restated Credit Agreement dated July
14, 1998 (the "Amended Credit Agreement") pursuant to which the Prior Lenders
have made available to the Borrower a revolving credit facility of up to
$150,000,000, which revolving credit facility is evidenced by revolving notes
dated July 14, 1998; and
WHEREAS, the obligations of the Borrower under the Amended Credit
Agreement are secured by certain assets of the Borrower as described in the
Security Agreement, as defined in the Amended Credit Agreement, between the
Borrower and the Agents; and
WHEREAS, the Borrower has requested that the Lenders party thereto
amend and restate the Amended Credit Agreement and make available to the
Borrower a term loan facility
in the amount of $100,000,000 and a revolving credit facility of up to
$185,000,000, which shall include a letter of credit facility of up to
$50,000,000 for the issuance of standby and commercial letters of credit and a
swing line facility of up to $15,000,000, the proceeds of which facilities are
to be used (i) to refinance the Borrower's existing 364-day facility provided
under that certain 364 Day Credit Agreement dated as of October 20, 1999 by and
among the Borrower, Bank of America, N.A., as Administrative Agent and as
Lender, SunTrust Bank, Tampa Bay, as Syndication Agent, and the Lenders party
thereto (the "364 Day Facility") and (ii) to provide working capital and for
general corporate purposes, upon the terms and conditions set forth herein; and
WHEREAS, the Lenders are willing to amend and restate the Amended
Credit Agreement to make such term loan, revolving credit and letter of credit
facilities available to the Borrower upon the terms and conditions set forth
herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agents hereby agree
as follows:
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ARTICLE I
Definitions and Terms
1.1. AMENDMENT AND RESTATEMENT. The Borrower, the Agents and the
Lenders hereby agree that upon the effectiveness of this Agreement, the terms
and provisions of the Amended Credit 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 Amended Credit Agreement, except as otherwise
provided in the next paragraph, shall be superseded by this Agreement.
Notwithstanding the amendment and restatement of the Amended Credit
Agreement by this Agreement, the Borrower shall continue to be liable to the
Original Agent, the Agents and the Prior Lenders with respect to agreements on
the part of the Borrower under the Amended Credit Agreement and the Original
Agreement to indemnify and hold harmless the Original Agent, the Agents and the
Prior Lenders from and against all claims, demands, liabilities, damages,
losses, costs, charges and expenses to which the Original Agent, the Agents and
the Prior Lenders may be subject arising in connection with the Amended Credit
Agreement or the Original Agreement. All security interests heretofore created
in favor of the Collateral Agent for the benefit of the Original Lenders and the
Prior Lenders shall continue in full force and effect and shall continue to
secure payment of all of the Obligations. This Agreement is given as a
substitution of, and not as a payment of, the obligations of Borrower under the
Amended Credit Agreement or the Original Credit Agreement and is not intended to
constitute a novation of the Amended Credit Agreement or the Original Credit
Agreement. Except as otherwise selected by the Borrower 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 Borrower under the Amended Credit Agreement as
of the Closing Date, shall constitute Advances hereunder accruing interest with
respect to the Base Rate Loans under the Amended Credit Agreement, at the Base
Rate hereunder. The parties hereto agree that the Interest Periods for all
Eurodollar Loans outstanding under the Amended Credit Agreement on the Closing
Date shall be terminated and the Borrower shall furnish to the Administrative
Agent Interest Rate Selection Notices for existing Loans and Borrowing Notices
for additional Loans as may be required in connection with the allocation of
Loans among Lenders in accordance with their Applicable Commitment Percentages.
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:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or any material part of the assets of such Person or of a line or lines
of business conducted by such Person. The merger of FLS into the
Borrower shall not be deemed an Acquisition.
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"Adjusted Base Rate" means, for any day, the rate per annum
equal to the remainder of (a) the Prime Rate for such day, less (b) one
percent (1%). Any change in the Adjusted Base Rate due to a change in
the Prime Rate shall be effective on the effective date of such change
in the Prime Rate.
"Advance" means any of (i) the borrowing under the Term Loan
Facility or (ii) a borrowing under the Revolving Credit Facility
consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 5% 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 the Borrower; or 5% 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 Person which is
beneficially owned or held by the 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 Fee" means that percent per annum based
upon the Consolidated Leverage Ratio for the Four-Quarter Period most
recently ended, set forth as the Applicable Commitment Fee in the
Pricing Grid and subject to further adjustment as therein provided.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, (i) with respect to the Revolving Credit Facility
and the Letter of Credit Facility the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, and (ii), with respect to the
Term Loan Facility, the numerator of which shall be such Lender's Term
Loan Commitment and the denominator shall be the Total Term Loan
Commitment, which Applicable Commitment Percentage for each Lender as
of the Closing Date is as set forth in Exhibit A; 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 13.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Administrative Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of
such Type are to be made and maintained.
"Applicable Margin" means that percent per annum based upon
the Consolidated Leverage Ratio for the Four-Quarter Period most
recently ended, set forth as the Applicable Margin in the Pricing Grid
and subject to further adjustment as therein provided.
4
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to an Issuing Bank to support the issuance of a Letter of
Credit.
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, other than as permitted under SECTION 10.6
hereof, of (a) any of the assets, excluding cash and cash equivalents,
of the Borrower or its Subsidiaries where the Net Proceeds of such
disposition exceed $50,000, and (b) any of the capital stock, or
securities or investments exchangeable, exercisable or convertible for
or into, or otherwise entitling the holder to receive any of the
capital stock, of any Subsidiary (other than a disposition to the
Borrower or a Guarantor).
"Assignment and Acceptance" means an Assignment and Acceptance
in the form of Exhibit B (with blanks appropriately filled in)
delivered to the Administrative Agent in connection with an assignment
of a Lender's interest under this Agreement pursuant to Section 13.1.
"Authorized Representative" means any of the Chief Executive
Officer, the President or any Vice President of the Borrower or, with
respect to financial matters, the Chief Financial Officer or Treasurer
of the Borrower, or any other Person expressly designated by the Board
of Directors of the Borrower (or the appropriate committee thereof) as
an Authorized Representative of the Borrower, as set forth from time to
time in a certificate in the form of EXHIBIT C.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds
Rate.
"Base Rate Loan" means a Loan (including a Segment) for which
the rate of interest is determined by reference to the Base Rate.
"Base Rate Segment" means a Segment bearing interest or to
bear interest at 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 Bank of America in
respect of Swing Line Outstandings.
5
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Board of Directors" means either the Board of Directors of
the Borrower or any duly authorized committee of that board.
"Borrower's Account" means a demand deposit account number
3750656390 or any successor account with the Administrative Agent,
which may be maintained at one or more offices of the Administrative
Agent or an agent of the Administrative Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of EXHIBITS D-1 and D-2,
respectively.
"BOT" means The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, and any successor thereto by merger or consolidation.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and, (ii) with respect to the selection, funding, interest rate,
payment, and Interest Period of any Eurodollar Rate Loan, any day which
is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Administrative Agent together with any compliance
certificate delivered pursuant to SECTION 9.1(a) OR (b), and (ii) with
respect to any Capital Lease entered into by the Borrower or its
Subsidiaries during such period, the present value of the lease
payments due under such Capital Lease over the term of such Capital
Lease applying a discount rate equal to the interest rate provided in
such lease (or in the absence of a stated interest rate, that rate used
in the preparation of the financial statements described in SECTION
9.1(a)), all the foregoing in accordance with GAAP applied on a
Consistent Basis.
"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.
6
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in
SECTIONS 13(d)(3) and 14(d)(2) of the Exchange Act) other than
Xxxxxx X.X. and its affiliates becomes the "beneficial owner"
(as defined in Rule 13d-3 of the Exchange Act ), directly or
indirectly, of Voting Securities of the Borrower (or
securities convertible into or exchangeable for such Voting
Securities) representing more than 35% of the combined voting
power of all Voting Securities of the Borrower (on a fully
diluted basis);
(ii) the Borrower, either individually or in
conjunction with one or more of its Subsidiaries, sells,
assigns, conveys, transfers, leases or otherwise disposes of,
all or substantially all of the properties of the Borrower and
its Subsidiaries, taken as a whole (either in one transaction
or a series of related transactions), including Voting
Securities of such Subsidiaries, to any Person (other than the
Borrower or a Subsidiary);
(iii) during any consecutive two-year
period, individuals who at the beginning of such period
constituted the Board of Directors of the Borrower (together
with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders
of the Borrower was approved by a vote of a majority of the
directors then still in office who were either directors at
the beginning of such period or whose election or nomination
for election was previously approved) cease for any reason to
constitute a majority of the Board of Directors of the
Borrower then in office; or
(iv) the Borrower is liquidated or dissolved
or adopts a plan of liquidation or dissolution.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Administrative Agent and
on which the conditions set forth in SECTION 7.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Collateral
Agent or the Administrative Agent or any Lender is granted a Lien under
any Security Instrument as security for all or any portion of the
Obligations or any other obligation arising under any Loan Document.
"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 financial statements of the Borrower referred to as of
the Closing Date in SECTION 8.6(a).
7
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any period ending on the date of computation
thereof, the sum of, without duplication, (i) Consolidated Net Income,
(ii) Consolidated Interest Expense, (iii) taxes on income, (iv)
amortization, (v) depreciation, (vi) any other non-cash charges, net of
non-cash credits, for such period in an aggregate amount not exceeding
$25,000,000 in any Four-Quarter Period, and (vii) for any Four-Quarter
Period which includes the fiscal quarter ending on June 30, 2000,
start-up costs associated with the Borrower's Knoxville, Tennessee
facility in an aggregate amount not exceeding $2,500,000, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Indebtedness" means all Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries, all determined on a
consolidated basis.
"Consolidated Interest Coverage Ratio" means, with respect to
the Borrower and its Subsidiaries for any Four-Quarter Period ending on
the date of computation thereof, the ratio of (i) Consolidated EBITDA
for such period, to (ii) the cash portion of Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, 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 fees payable in respect of any Swap Agreement) payable in
connection with the incurrence of 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 Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness less
cash and cash equivalents in excess of $10,000,000, as determined in
accordance with GAAP (in each case, determined as at such date) to (ii)
Consolidated EBITDA (for the Four-Quarter Period ending on (or most
recently ended prior to) such date).
"Consolidated Net Income" means, with respect to the Borrower
and its Subsidiaries for any period, the net income (or net loss) for
such period as determined on a consolidated basis in accordance with
GAAP, adjusted to the extent included in calculating such net income or
loss by excluding (i) any net after-tax extraordinary gains (less all
fees and expenses relating thereto) and $2,325,000 of losses incurred
in December 1999 in connection with refinancing of Indebtedness, (ii)
any net after-tax gains (less all fees and expenses relating thereto),
attributable to asset dispositions other than (x) in the ordinary
course of business, and (y) as permitted in SECTION 10.6(b) hereof,
(iii) the portion of any net income of any Person that is not a
Subsidiary, in which the Borrower has an ownership interest, or that is
accounted for by the equity method of accounting, except to the extent
of the amount of dividends or distributions actually paid
8
to the Borrower in cash, and (iv) the net income of any Person combined
with the Borrower on a "pooling of interests" basis attributable to any
period prior to the date of computation.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, (i) the sum of the following in
respect of the Borrower and its Subsidiaries (determined on a
consolidated basis and excluding any upward adjustment after the
Closing Date due to revaluation of assets): (a) the amount of issued
and outstanding share capital, (b) the amount of additional paid-in
capital and retained earnings (or, in the case of a deficit, minus the
amount of such deficit), and (c) the amount of any foreign currency
translation adjustment (if positive, or, if negative, minus the amount
of such translation adjustment), (ii) minus the amount of any treasury
stock, all as determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Continue," "Continuation," and "Continued" shall refer to the
continuation pursuant to SECTION 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert," "Conversion," and "Converted" shall refer to a
conversion pursuant to SECTION 4.2 of one Type of Loan into another
Type of Loan.
"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 Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding property
described in clause (i) and the unpaid principal amount of any debt
instrument) given as consideration, (iii) the amount (determined by
using the face amount or the amount payable at maturity, whichever is
greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower shall be valued (I) in the case
of capital stock that is then designated as a national market system
security by the National Association of Securities Dealers, Inc.
("NASDAQ") or is listed on a national securities exchange, the average
of the last reported bid and ask quotations or the last prices reported
thereon, and (II) with respect to any other shares that are not freely
tradeable, as determined by a
9
committee composed of the disinterested members of the Board of
Directors of the Borrower and, if requested by the Administrative
Agent, determined to be a reasonable valuation by the independent
public accountants referred to in SECTION 9.1(a), (B) the capital stock
of any Subsidiary shall be valued as determined by a committee composed
of the disinterested members of the Board of Directors of such
Subsidiary and, if requested by the Administrative Agent, determined to
be a reasonable valuation by the independent public accountants
referred to in SECTION 9.1(a), 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.
"Credit Party" means any of the Borrower, each Guarantor and
each other Person providing Collateral pursuant to any Security
Instrument.
"Debt Offering" means the incurrence of any Indebtedness for
Money Borrowed permitted hereunder in connection with a public offering
or private placement of debt securities of the Borrower or any
Subsidiary or otherwise, except to the extent permitted under SECTION
10.5.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Swing Line Loans, Reimbursement Obligations, fees, and other amounts
payable in respect of (x) Obligations or (y) (except as otherwise
expressly provided therein) the obligations of any other Credit Party
under any of the other Loan Documents, a rate of interest per annum
which shall be two percent (2%) above the Base Rate and (iii) in any
case, the maximum rate permitted by applicable law, if lower.
"Direct Foreign Subsidiary" means a Subsidiary, other than a
Domestic Subsidiary, a majority of whose Voting Securities, or a
majority of whose Subsidiary Securities, are owned by the Borrower or a
Domestic Subsidiary.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Administrative Agent
and, unless an Event of Default has occurred and is continuing at the
time any assignment is effected in accordance with
10
SECTION 13.1, the Borrower, such approval not to be unreasonably
withheld or delayed by the Borrower or the Administrative Agent and
such approval to be deemed given by the Borrower (in the absence of
notice to the contrary, effective upon receipt) within five Business
Days after notice of such proposed assignment has been provided by the
assigning Lender to the Borrower; provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Administrative
Agent:
(a) Government Securities;
(b) obligations of any corporation organized
under the laws of any state of the United States of America or
under the laws of any other nation, payable in the United
States of America, expressed to mature not later than 180 days
following the date of issuance thereof and rated in an
investment grade rating category by S&P and Xxxxx'x;
(c) interest bearing demand or time deposits
issued by any Lender or certificates of deposit maturing
within one year from the date of issuance thereof and issued
by a bank or trust company organized under the laws of the
United States or of any state thereof having capital surplus
and undivided profits aggregating at least $400,000,000 and
being rated "A" or better by S&P or "A-2" or better by
Xxxxx'x;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P;
(h) tax-exempt or taxable adjustable rate
preferred stock issued by a Person having a rating of its long
term unsecured debt of "A" or better by S&P or "A-2" or better
by Xxxxx'x; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Xxxxx'x.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of SECTION 3(3) of ERISA
which (A) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is
11
assumed by the Borrower or any of its ERISA Affiliates, or any
Subsidiary in connection with any Acquisition or (B) has at any time
been maintained for the employees of the Borrower, any current or
former ERISA Affiliate, or any Subsidiary and (ii) any plan,
arrangement, understanding or scheme maintained by the Borrower or any
Subsidiary that provides retirement, deferred compensation, employee or
retiree medical or life insurance, severance benefits or any other
benefit covering any employee or former employee and which is
administered under any Foreign Benefit Law or regulated by any
Governmental Authority other than the United States of America.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"Equity Offering" means a public or private offering of equity
securities (including, without limitation, any security or investment
exchangeable, exercisable or convertible for or into, or otherwise
entitling the holder to receive, equity securities) of the Borrower or
any Subsidiary.
"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 the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan (including a Segment) for
which the rate of interest is determined by reference to the Eurodollar
Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
Rate --------------------------------------- Margin
1- Reserve Requirement
"Eurodollar Rate Segment" means a Segment bearing interest or
to bear interest at the Eurodollar Rate.
"Event of Default" means any of the occurrences set forth as
such in SECTION 11.1.
12
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Letters of Credit" means those letters of credit
described on SCHEDULE 1.1 attached hereto.
"Facility Guaranty" means each Guaranty Agreement between one
or more Guarantors and the Administrative Agent for the benefit of the
Administrative Agent and the Lenders, delivered pursuant to SECTION
9.19, as the same may be amended, modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Swing Line by payment
in full of all Revolving Credit Outstandings and Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued and
unpaid interest thereon, except for the undrawn portion of Letters of
Credit as have been fully cash collateralized in a manner consistent
with the terms of SECTION 11.1(B), (b) the Borrower shall have paid all
Term Loan Outstandings in full, together with all accrued and unpaid
interest thereon, (c) all Swap Agreements shall have been terminated,
expired or cash collateralized, (d) all Term Loan Commitments,
Revolving Credit Commitments and Letter of Credit Commitments shall
have terminated or expired and (e) the Borrower shall have fully,
finally and irrevocably paid and satisfied in full all Obligations
(other than Obligations consisting of continuing indemnities and other
contingent obligations of the Borrower or any Guarantor that may be
owing to the Lenders pursuant to the Loan Documents and expressly
survive termination of this Agreement).
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative
Agent.
"Fiscal Year" means from and after January 1, 2001 the twelve
month fiscal period of the Borrower and its Subsidiaries commencing on
January 1 of each calendar year and ending on December 31 of the same
calendar year, and for the period ending December 31, 2000, a nine
month period beginning April 1, 2000.
"FLS" means FLS Holdings, Inc., a Delaware corporation.
13
"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 Borrower and its Subsidiaries, taken together as
one accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guaranties" means, with respect to any Person any obligation
(except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person
guaranteeing any Indebtedness of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including
(without limitation) obligations incurred through an agreement,
contingent or otherwise, by such Person: (a) to purchase such
Indebtedness or any property or assets constituting security therefor;
(b) to advance or supply funds (i) for the purpose of payment of such
Indebtedness, or (ii) to maintain working capital or other balance
sheet condition or any income statement condition of the Primary
Obligor or otherwise to advance or make available funds for the
purchase or payment of such Indebtedness; (c) to lease property or to
purchase securities or other property or services primarily for the
purpose of assuring the owner of such Indebtedness of the ability of
the Primary Obligor to make payment of the Indebtedness; or (d)
otherwise to assure the owner of the Indebtedness of the Primary
Obligor against loss in respect thereof. For purposes of computing the
amount of any Guaranty, in connection with any computation of
Indebtedness, it shall be assumed that the Indebtedness that is the
subject of such Guaranty is, to the extent guaranteed under such
Guaranty, a direct obligation of the issuer of such Guaranty.
"Guarantors" means, at any date, the Subsidiaries who are
required to be parties to a Facility Guaranty at such date.
14
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property or arising under Rate
Hedging Obligations, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness is assumed,
all liability of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Guaranties and other items which in accordance with GAAP is required to
be classified as a liability on a balance sheet; but excluding all
trade payables and accrued expenses in the ordinary course of business
so long as payment therefor is due within one year; provided that in no
event shall the term Indebtedness include surplus and retained
earnings, lease obligations (other than pursuant to Capital Leases),
reserves for deferred income taxes and investment credits, other
deferred credits or reserves.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases the deferred purchase price of any property or services, the
aggregate face amount of all surety bonds (but only to the extent of
any excess in the aggregate face amount thereof above $5,000,000),
letters of credit, and bankers' acceptances, and (without duplication)
all payment and reimbursement obligations in respect thereof whether or
not matured, evidenced by a promissory note, bond, debenture or similar
written obligation for the payment of money (including reimbursement
agreements and conditional sales or similar title retention
agreements), including all such items incurred by any partnership or
joint venture as to which such Person is liable as a general partner or
joint venturer, other than trade payables and accrued expenses incurred
in the ordinary course of business.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, provided, however; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
15
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two, three or six months thereafter as notified to the
Administrative Agent by the Authorized Representative in accordance
with the terms 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 (unless such extension would cause the
applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end on the
next preceding Business Day); and
(ii) any Interest Period which begins on
the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Business Day of a calendar month.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of EXHIBIT E.
"Issuing Bank" means any of Bank of America, SunTrust Bank,
Tampa Bay and PNC Bank, National Association, as issuers of Letters of
Credit under ARTICLE III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Administrative Agent,
as amended, modified or supplemented from time to time.
"Letter of Credit" means, individually, a standby or
commercial letter of credit issued by an Issuing Bank pursuant to
ARTICLE III hereof for the account of the Borrower in favor of a Person
advancing credit or securing an obligation on behalf of the Borrower
and any one of the Existing Letters of Credit; "Letters of Credit"
means, collectively, all such standby or commercial letters of credit
and the Existing Letters of Credit.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate 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 facility described in
ARTICLE III hereof providing for the issuance by the Issuing Banks for
the account of the Borrower of
16
Letters of Credit in an aggregate stated amount at any time outstanding
not exceeding the Total Letter of Credit Commitment minus outstanding
Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any of the Revolving Loans, the Term
Loan or the Swing Line Loan, including any Segment.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, the LC Account Agreement, the
Applications and Agreements for Letter of Credit, and all other
instruments and documents heretofore or hereafter executed or delivered
to or in favor of any Lender (including any Issuing Bank) or the
Administrative Agent or the Collateral 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 on
(i) the business, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as
a whole, (ii) the ability of any Credit Party to pay or perform its
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Administrative Agent or any Lender under any Loan Document or the
validity, legality or enforceability thereof.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, the Deed of Trust from the Borrower granting
a Lien to the Administrative Agent (or a trustee for the benefit of the
Administrative Agent) for the benefit of the Lenders in the Mortgage
Property, as amended, modified or supplemented from time to time.
"Mortgage Property" means the land, buildings, fixtures and
improvements constituting the mini-mill facility of Borrower located in
Charlotte, North Carolina, together with any additions and improvements
thereto.
17
"Mortgage Property Support Documents" means, for the Mortgage
Property, (i) the Title Policy pertaining thereto, (ii) such surveys,
flood hazard certifications and environmental assessments thereof as
the Administrative Agent may require prepared by recognized experts in
their respective fields selected by the Borrower and reasonably
satisfactory to the Administrative Agent, (iii) evidence that no
portion of the Mortgage Property is located in a flood hazard area,
(iv) evidence of insurance of the kind and type required by the
Mortgage issued by an insurance company acceptable to the
Administrative Agent, (v) such owner's or lessee's affidavits as the
Administrative Agent may require, (vi) such opinions of local counsel
with respect to the Mortgage, as the Administrative Agent may require,
and (vii) such other documentation as the Administrative Agent may
reasonably require, in each case as shall be in form and substance
reasonably acceptable to the Administrative Agent.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"Net Proceeds" (a) from any Equity Offering or Debt Offering
means cash payments received by the Borrower or any Subsidiary
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 Asset Disposition means cash payments received by the
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
as a consequence of such disposition, (iii) all amounts applied to
repayment of Indebtedness (other than the Obligations) secured by a
Lien on the asset or property disposed and (iv) all amounts reinvested
by the Borrower or a Subsidiary substantially contemporaneously with
such disposition (or to be invested within 90 days pursuant to an
investment plan approved by the Administrative Agent) in replacement
assets of substantially equal or greater value and utility.
"Notes" means, collectively, the Term Notes, the Swing Line
Note and the Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender (or any affiliate of any
Lender) which arise under a
18
Swap Agreement, and (iv) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the
Lenders (including the Issuing Banks), the Administrative Agent or BAS
hereunder, under any one or more of the other Loan Documents or with
respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, Swing Line Outstandings, Term Loan Outstandings
and Revolving Credit Outstandings on such date.
"Participation" means, (i) with respect to any Letter of
Credit and any Lender (other than the Issuing Bank of such 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 such Letter of Credit in accordance with the terms hereof and (ii)
with respect to any Lender (other than Bank of America) and a Swing
Line Loan, the extension of credit represented by the participation of
such Lender hereunder in the liability of Bank of America in respect of
a Swing Line Loan made by Bank of America in accordance with the terms
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
19
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) any Securities Pledge Agreement delivered to
the Administrative Agent pursuant to SECTION 9.9 and (ii) with respect
to any Subsidiary Securities issued by a Direct Foreign Subsidiary, any
additional or substitute charge, agreement, document, instrument or
conveyance, in form and substance acceptable to the Administrative
Agent, conferring under applicable foreign law upon the Administrative
Agent for the benefit of the Administrative Agent and the Lenders a
Lien upon such Subsidiary Securities as are owned by the Borrower or
any Domestic Subsidiary, in each case as hereafter amended,
supplemented (including by Pledge Agreement Supplement) or amended and
restated from time to time.
"Pledge Agreement Supplement" means, with respect to each
Pledge Agreement, the Pledge Agreement Supplement in the form affixed
as an exhibit to such Pledge Agreement.
"Pledged Interests" means the Subsidiary Securities required
to be pledged as Collateral pursuant to ARTICLE V or the terms of any
Pledge Agreement.
"Pricing Grid" means:
APPLICABLE MARGIN
APPLICABLE
CONSOLIDATED BASE EURODOLLAR COMMITMENT
TIER LEVERAGE RATIO RATE RATE FEE
---- -------------- ----------- ------------------------
I Less than or equal to 1.5 to 1.0 .0% .875% .20%
II Less than or equal to 2.0 to 1.0 .0% 1.125% .25%
but greater than 1.5 to 1.0
III Less than or equal to 2.5 to 1.0 .0% 1.375% .30%
but greater than 2.0 to 1.0
IV Less than or equal to 3.0 to 1.0 .125% 1.625% .35%
but greater than 2.5 to 1.0
V Less than or equal to 3.5 to 1.0 .375% 1.875% .40%
but greater than 3.0 to 1.0
VI Greater than 3.5 to 1.0 .625% 2.125% .45%
The Applicable Margin and Applicable Commitment Fee shall be
established at the end of each fiscal quarter of the Borrower (each, a
"Determination Date"). Any change in the Applicable Margin or
Applicable Commitment Fee following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Administrative Agent pursuant to SECTION 9.1(a)(ii)
and SECTION 9.1(b)(ii), subject to review and approval of such
computations by the Administrative Agent, and shall be effective
commencing on the fifth Business Day following the date such
certificate is
20
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. Notwithstanding the foregoing, from the Closing Date
to the fifth Business Day following the date the certificate referred
to in the preceding sentence for the fiscal period ended March 31, 2001
is delivered or is required to be delivered (whichever shall first
occur), the Applicable Margin and Applicable Commitment Fee shall be at
least Tier IV. Notwithstanding the provisions of the two preceding
sentences, if the Borrower shall fail to deliver any such certificate
within the time period required by SECTION 9.1, then the Applicable
Margin and Applicable Commitment Fee shall be Tier VI from the date
such certificate was due until the fifth Business Day following the
date the appropriate certificate is so delivered.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, XX0
000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services,
or such other office and address as the Administrative Agent may from
time to time designate.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in Statements of Financial
Accounting Standards No. 133 ("FASB 133") and which are subject to the
reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing. For purposes of any
21
computation hereunder, each Rate Hedging Obligation shall be valued at
the Rate Hedge Value thereof.
"Rate Hedge Value" means, with respect to each contract,
instrument or other arrangement creating a Rate Hedging Obligation, the
net obligations of the Borrower or any Subsidiary thereunder equal to
the termination value thereof as determined in accordance with its
provisions (if such Rate Hedging Obligation has been terminated) or the
xxxx to market value thereof as determined on the basis of available
quotations from any recognized dealer in, or from Bloomberg or other
similar service providing market quotations for, the applicable Rate
Hedging Obligation (if such Rate Hedging Obligation has not been
terminated).
"Registrar" means, with respect to any Subsidiary Securities,
any Person authorized or obligated to maintain records of the
registration of ownership or transfer of ownership of interests in such
Subsidiary Securities, and in the event no such Person shall have been
expressly designated by the related Subsidiary, shall mean (i) as to
any corporation or limited liability company, its Secretary (or
comparable official), and (ii) as to any partnership, its general
partner (or managing general partner if one shall have been appointed).
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank thereof and the Lenders to the extent of
their respective Participations (including by the receipt by the
Issuing Bank of proceeds of Loans pursuant to SECTION 2.2(c)(iii)) for
amounts theretofore paid by the Issuing Bank pursuant to a drawing
under such Letter of Credit.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 51% 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 its Revolving Credit Commitment and Term Loan Commitment, and
(b) following the occurrence and during the continuance of an Event of
Default, to the sum of (i) the amount of such Lender's Applicable
Commitment Percentage of Term Loan Outstandings plus (ii) the aggregate
principal amount of such Lender's Applicable Commitment Percentage of
Revolving Credit Outstandings plus (iii) the amount of such Lender's
Applicable Commitment Percentage of Letter of Credit Outstandings and
Swing Line Outstandings; provided that, for the purpose of this
definition only, (A) if any Lender shall have failed to fund its
Applicable Commitment Percentage of any Advance,
22
then the Term Loan Commitment or Revolving Credit Commitment, as
applicable, of such Lender shall be 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, (B) if
any Lender shall have failed to pay to any Issuing Bank upon demand its
Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation (whether by
funding its Participation therein or otherwise), such Lender's Credit
Exposure attributable to all Letter of Credit Outstandings shall be
deemed to be held by such Issuing Bank until such Lender shall pay such
deficiency amount to such Issuing Bank together with interest thereon
as provided in SECTION 4.9 and (C) if any Lender shall have failed to
pay to Bank of America 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 Bank of America until
such Lender shall pay such deficiency amount to Bank of America
together with interest thereon as provided in SECTION 4.9.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any Subsidiary Securities of its Subsidiaries
(other than those payable or distributable solely to the Borrower or a
Subsidiary of the Borrower) now or hereafter outstanding, except a
dividend payable solely in shares of a class of stock to the holders of
that class; (b) any redemption, conversion, exchange, retirement or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of Borrower or any
Subsidiary Securities of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Borrower or any Subsidiary Securities of its
Subsidiaries now or hereafter outstanding; and (d) any issuance and
sale of Subsidiary Securities of any Subsidiary of the Borrower (or any
option, warrant or right to acquire such stock) other than to the
Borrower.
23
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
SECTION 2.2 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"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) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to SECTION 11.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with SECTION 2.2.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in SECTION 2.4 substantially in the form of EXHIBIT
F-1, with appropriate insertions as to amounts, dates and names of
Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx.
"Security Agreement" means the Security Agreement dated June
9, 1995, as amended, between the Borrower and BOT, and each Security
Agreement delivered to the Administrative Agent pursuant to SECTION
9.19, as hereafter modified, amended or supplemented from time to time.
"Security Instruments" means, collectively, the Pledge
Agreement, the Security Agreement, the Mortgage, the Mortgage Property
Support Documents, and all other agreements (including control
agreements), instruments and other documents, whether now existing or
hereafter in effect, pursuant to which the Borrower or any Subsidiary
or other Person shall grant or convey to the Collateral Agent, the
Administrative Agent or the Lenders a Lien in, or any other Person
shall acknowledge any such Lien in, property as security for all or any
portion of the Obligations or any other obligation under any Loan
Document, as any of them may be amended, modified or supplemented from
time to time.
24
"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.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(a) 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 Guaranties; and
(b) it is then able and expects to be able to
pay its debts as they mature; and
(c) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Stated Termination Date" means September 12, 2005.
"Subordinated Debt" means Indebtedness owing to an Affiliate,
including Gerdau, S.A. or any of its subsidiaries, which Indebtedness
is subordinated to the Obligations on terms acceptable to the
Administrative Agent in its sole and absolute discretion.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Subsidiary Securities" means the shares of capital stock or
the other equity interests issued by or equity participations in any
Subsidiary, whether or not constituting a "security" under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the
Borrower and any Person with respect to Indebtedness evidenced by any
or all of the Notes, on terms mutually acceptable to Borrower and such
Person and approved by the Required 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 the Borrower and any Lender or any affiliate of any
Lender.
"Swing Line" means the revolving line of credit established by
Bank of America in favor of the Borrower pursuant to SECTION 2.5.
"Swing Line Loans" means loans made by Bank of America to the
Borrower pursuant to SECTION 2.5.
25
"Swing Line Note" means the promissory note of the Borrower
evidencing the Swing Line executed and delivered to Bank of America as
provided in SECTION 2.4 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 SECTION 2.1.
"Term Loan Commitment" means, with respect to each Lender, the
obligation of such Lender to make the Term Loan to the Borrower in a
principal amount equal to such Lender's Applicable Commitment
Percentage of the Total Term Loan Commitment as set forth on EXHIBIT A.
"Term Loan Facility" means the facility described in SECTION
2.1 providing for a Term Loan to the Borrower by the Lenders in the
original principal amount of $100,000,000.
"Term Loan Maturity Date" means September 12, 2005.
"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) the Term Loan Maturity
Date or (ii) such earlier date of termination of Lenders' obligations
pursuant to SECTION 11.1 upon the occurrence of an Event of Default, or
(iii) such date as the Borrower may voluntarily and permanently
terminate the Term Loan Facility by payment in full of all Obligations
incurred in connection with the Term Loan.
"Term Notes" means, collectively, the promissory notes of the
Borrower evidencing Term Loans executed and delivered to the Lenders as
provided in SECTION 2.4 substantially in the form of EXHIBIT F-2, with
appropriate insertions as to amounts, dates and names of Lenders.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
26
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any
event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in the termination of
such Employee Benefit Plan or the revocation of such Employee Benefit
Plan's authority to operate under the applicable Foreign Benefit Law.
"Title Policy" means, with respect to the Mortgage Property,
an ALTA Mortgagee's Title Insurance Policy (together with such
endorsements as the Administrative Agent may reasonably require) issued
to the Administrative Agent in respect of the Mortgage Property by an
insurer selected by the Borrower and reasonably acceptable to the
Administrative Agent, insuring (in an amount equal $120,000,000) the
Lien of the Administrative Agent for the benefit of the Administrative
Agent and the Lenders on such Mortgage Property to be duly perfected
and of first priority, subject only to those exceptions set forth in
SECTION 2 of Schedule B to Title Insurance Commitment Xx. 0000000 dated
September 7, 2000 issued by Lawyers Title Insurance Corporation.
"Total Letter of Credit Commitment" means an amount not to
exceed $50,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $185,000,000, as reduced from time to time in accordance with
SECTION 2.2(e).
"Total Term Loan Commitment" means a principal amount equal to
$100,000,000.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
1.3 RULES OF INTERPRETATION.
-----------------------
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
27
(b) Each term defined in Articles 1, 8 or 9 of the Florida
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder," "hereto," "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and such term
shall not limit a general statement to matters similar to those
specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%,"
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
28
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
29
ARTICLE II
The Credit Facilities
2.1 TERM LOAN.
---------
(a) FUNDING. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make an Advance of the Term
Loan to the Borrower on the Closing Date on a pro rata basis determined
by its Applicable Commitment Percentage up to the Term Loan Commitment
of such Lender. The principal amount of each Segment of the Term Loan
outstanding hereunder from time to time shall bear interest and the
Term Loan shall be repayable as herein provided. No amount of the Term
Loan repaid or prepaid by the Borrower may be reborrowed hereunder, and
no subsequent Advances of Term Loan amounts shall be made by any Lender
after the initial such Advance.
(b) TERM LOAN ADVANCE. Not later than 1:00 P.M., on the
Closing Date, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Advance of the
Term Loan to be made by it on such day available by wire transfer to
the Administrative Agent in the amount of its Term Loan Commitment.
Such wire transfer shall be directed to the Administrative Agent at the
Principal Office and shall be in the form of immediately available,
freely transferable Dollars. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of the
proceeds thereof to the Borrower's Account or otherwise as shall be
directed by the Authorized Representative and reasonably acceptable to
the Administrative Agent.
(c) PAYMENT OF PRINCIPAL. The principal amount of the Term
Loan shall be repaid in fifteen (15) consecutive quarterly installments
of $6,250,000 each on the last Business Day of each March, June,
September and December, with the first such installment being due
December 31, 2001, and with the entire amount of Term Loan Outstandings
due and payable in full on the Term Loan Termination Date.
(d) OPTIONAL PREPAYMENTS. The Borrower may prepay the Term
Loan in whole or in part from time to time on any Business Day, without
penalty or premium, upon at least three (3) Business Days' notice by
facsimile transmission from an Authorized Representative (effective
upon receipt) to the Administrative Agent prior to 10:30 A.M., which
notice shall be irrevocable. Any prepayment, whether of a Base Rate
Segment or a Eurodollar Rate Segment, shall be made at a prepayment
price equal to (i) the amount of principal to be prepaid, plus (ii) all
accrued and unpaid interest on the amount so prepaid, to the date of
prepayment. All prepayments under this SECTION 2.1(d) shall be made in
the minimum principal amount of $1,000,000 or any integral multiple of
$100,000 in excess thereof (or in the entire remaining principal
balance of the Term Loan), and all such prepayments of principal shall
be applied to installments of principal in inverse order of their
maturities.
30
(e) MANDATORY PREPAYMENTS. In addition to the required
payments of principal of the Term Loan set forth in SECTION 2.1(c) and
any optional payments of principal of the Term Loan effected under
SECTION 2.1(d), until the Term Loan is repaid in full, the Borrower
shall make, or shall cause each applicable Subsidiary to make the
following prepayments, each such prepayment to be made to the
Administrative Agent for the benefit of the Lenders within the time
period specified below:
(i) Debt Offerings. The Borrower shall make, or shall
cause each applicable Subsidiary to make, a prepayment from
the Net Proceeds of any Debt Offering in an amount equal to
one hundred percent (100%) of such Net Proceeds. Each such
prepayment shall be made within five (5) Business Days of
receipt of such Net Proceeds and upon not less than three (3)
Business' Days written notice to the Administrative Agent, and
shall include within one (1) Business Day of repayment a
certificate of an Authorized Representative setting forth in
reasonable detail the calculations utilized in computing the
amount of the Net Proceeds.
(ii) Asset Dispositions. The Borrower shall make, or
shall cause each applicable Subsidiary to make, a prepayment
from the Net Proceeds of any Asset Disposition in an amount
equal to one hundred percent (100%) of such Net Proceeds. Each
such prepayment shall be made within five (5) Business Days of
receipt of such Net Proceeds and upon not less than three (3)
Business' Days written notice to the Administrative Agent,
which notice shall include a certificate of Authorized
Representative setting forth in reasonable detail the
calculations utilized in computing the amount of the Net
Proceeds.
2.2 REVOLVING LOANS.
---------------
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrower under the Revolving Credit Facility from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower 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 no Lender will be required or have any 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 Administrative 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 Letter of Credit Outstandings plus Swing Line
Outstandings shall not exceed the Total Revolving Credit Commitment.
Within such limits and subject to the other terms and conditions of
this Agreement, the Borrower may borrow, repay and reborrow under the
Revolving Credit Facility on a Business Day from the Closing Date
until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date.
31
(b) AMOUNTS. Except as otherwise permitted by the Lenders from
time to time, the amount of Revolving Credit Outstandings plus Letter
of Credit Outstandings plus Swing Line Outstandings shall not exceed at
any time the Total Revolving Credit Commitment, and, in the event there
shall be outstanding any such excess, the Borrower shall immediately
make such payments and prepayments as shall be necessary to comply with
this restriction. Each Advance under the Revolving Credit Facility,
other than Base Rate Refunding Loans, shall be in an amount of at least
$2,000,000, and, if greater than $2,000,000, an integral multiple of
$500,000.
(c) ADVANCES.
--------
(i) An Authorized Representative shall give the
Administrative Agent (1) at least three (3) Business Days'
irrevocable notice by telefacsimile transmission of each
Eurodollar Rate Loan (whether representing an additional
borrowing or the Continuation of a borrowing hereunder or the
Conversion of a borrowing hereunder from a Base Rate Loan to a
Eurodollar Rate Loan) prior to 1:00 P.M. and (2) irrevocable
notice by telefacsimile transmission of each Base Rate Loan
(other than Base Rate Refunding Loans to the extent the same
are effected without notice pursuant to SECTION 2.2(c)(iii)
and whether representing an additional borrowing hereunder or
the Conversion of borrowing hereunder from Eurodollar Rate
Loans to Base Rate Loans) prior to 10:30 A.M. on the day of
such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Administrative Agent, 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
Borrowing Notice or Interest Rate Selection Notice, as the
case may be, together with the amount of each Lender's portion
of an Advance requested thereunder, shall be provided by the
Administrative Agent to each Lender by telefacsimile
transmission with reasonable promptness, but (provided the
Administrative Agent shall have received such notice by 1:00
P.M. in the case of a Eurodollar Rate Loan and 11:00 A.M. in
the case of a Base Rate Loan) not later than 3:00 P.M., in the
case of a Eurodollar Rate Loan, and not later than 1:00 P.M.,
in the case of Base Rate Loan, on the same day as the
Administrative Agent's receipt of such notice.
(ii) Not later than 3:00 P.M. on the date specified
for each borrowing under this SECTION 2.2, each Lender shall,
pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be
made by it on such day available by wire transfer to the
Administrative 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
Administrative Agent at the Principal Office and shall be in
the form of Dollars constituting immediately available funds.
The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof
to the
32
Borrower's Account or otherwise as shall be directed in the
applicable Borrowing Notice by the Authorized Representative
and reasonably acceptable to the Administrative Agent.
(iii) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit, such drawing is honored by
the Issuing Bank thereof, and the Borrower shall not
immediately fully reimburse such Issuing Bank in respect of
such drawing from other funds available to the Borrower, (A)
provided that the conditions to making a Revolving Loan as
herein provided shall then be satisfied, the Reimbursement
Obligation arising from such drawing shall be paid to such
Issuing Bank by the Administrative Agent without the
requirement of notice to or from the Borrower from immediately
available funds which shall be advanced as a Base Rate
Refunding Loan to the Administrative Agent at its Principal
Office by each Lender under the Revolving Credit Facility in
an amount equal to such Lender's Applicable Commitment
Percentage of such Reimbursement Obligation, and (B) if the
conditions to making a Revolving Loan as herein provided shall
not then be satisfied, each of the Lenders shall fund by
payment to the Administrative Agent (for the benefit of such
Issuing Bank) at its Principal Office in immediately available
funds the purchase from such Issuing Bank of their respective
Participations in the related Reimbursement Obligation based
on their respective Applicable Commitment Percentages of the
Total Letter of Credit Commitment; provided, however, that a
Lender shall not be required to fund any amounts in excess of
its Revolving Credit Commitment. If a drawing is presented
under any Letter of Credit in accordance with the terms
thereof and the Borrower shall not immediately reimburse the
Issuing Bank in respect thereof, then notice of such drawing
or payment shall be provided promptly by such Issuing Bank to
the Administrative Agent and the Administrative Agent shall
provide notice to each Lender by telephone or telefacsimile
transmission. If notice to the Lenders of a drawing under any
Letter of Credit is given by the Administrative Agent at or
before 12:00 noon on any Business Day, each Lender shall
either make a Base Rate Refunding Loan or fund the purchase of
its Participation as specified above in the amount of such
Lender's Applicable Commitment Percentage of such drawing or
payment and shall pay such amount to the Administrative Agent
for the account of such Issuing Bank at the Principal Office
in Dollars and in immediately available funds before 2:30 P.M.
on the same Business Day. If such notice to the Lenders is
given by the Administrative Agent after 12:00 noon on any
Business Day, each Lender shall either make such Base Rate
Refunding Loan or fund such purchase before 12:00 noon on the
next following Business Day.
(d) REPAYMENT OF REVOLVING LOANS The principal amount of each
Revolving Loan shall be due and payable to the Administrative 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 Revolving Loan may be prepaid in whole or in part on any
Business Day, upon (A) at least three (3) Business Days' irrevocable
notice by facsimile transmission in the case of each Revolving Loan
that is a Eurodollar Rate Loan from an Authorized Representative
(effective upon receipt) to the Administrative Agent
33
prior to 1:00 P.M. and (B) irrevocable notice by facsimile transmission
in the case of each Revolving Loan that is a Base Rate Loan from an
Authorized Representative (effective upon receipt) to the
Administrative Agent prior to 10:30 A.M. on the day of such proposed
repayment. All prepayments of Revolving Loans made by the Borrower
shall be in the amount of $2,000,000 or such greater amount which is an
integral multiple of $500,000, or the amount equal to all Revolving
Credit Outstandings, or such other amount as necessary to comply with
Section 2.2(b).
(e) REDUCTIONS. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than three
(3) Business Days' written notice to the Administrative Agent,
effective upon receipt, to reduce the Total Revolving Credit
Commitment. The Administrative Agent shall give each Lender, within one
(1) Business Day of receipt of such notice, telefacsimile notice, or
telephonic notice (confirmed in writing), of such reduction. Each such
reduction shall be in the aggregate amount of $5,000,000 or such
greater amount which is in an integral multiple of $500,000, or the
entire remaining Total Revolving Credit Commitment, and shall
permanently reduce the Total Revolving Credit Commitment. Each
reduction of the Total Revolving Credit Commitment shall be accompanied
by payment of the Revolving Loans or Swing Line Loans to the extent
that the principal amount of Revolving Credit Outstandings plus Letter
of 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.
2.3 USE OF PROCEEDS.
---------------
(a) The proceeds of the Term Loan shall be used by the
Borrower to refinance the 364 Day Facility and for other corporate
purposes.
(b) The proceeds of the Loans made pursuant to the Revolving
Credit Facility hereunder shall be used by the Borrower for general
working capital needs and other corporate purposes.
2.4 NOTES.
-----
(a) REVOLVING NOTES. Revolving Loans made by each Lender shall
be evidenced by the Revolving Note payable to the order of such Lender
in the respective amount of its Applicable Commitment Percentage of the
Total Revolving Credit Commitment, which Revolving Note shall be dated
the Closing Date or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the
Borrower.
(b) TERM NOTES. The portion of the Term Loan made by each
Lender shall be evidenced by the Term Note payable to the order of such
Lender in the respective amount of its Term Loan Commitment, which Term
Notes shall be dated the Closing Date or a
34
later date pursuant to an Assignment and Acceptance and shall be duly
completed, executed and delivered by the Borrower.
(c) SWING LINE NOTE. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of the
Bank of America 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.
2.5 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
Administrative Agent and the Lenders, Bank of America shall make
available Swing Line Loans to the Borrower prior to the Revolving
Credit Termination Date. Bank of America shall not make any Swing Line
Loan pursuant hereto (i) if to the actual knowledge of Bank of America
the Borrower is 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
$15,000,000, or (iii) if after giving effect to such Swing Line Loan,
the sum of the Swing Line Outstandings, Revolving Credit Outstandings
and Letter of Credit Outstandings exceeds the Total Revolving Credit
Commitment. The Borrower may, subject to the conditions set forth in
the preceding sentence, borrow, repay and reborrow under this Section
2.5. Unless notified to the contrary by Bank of America, borrowings
under the Swing Line shall be made in the minimum amount of $100,000
or, if greater, in amounts which are integral multiples of $10,000, 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 Borrower made to Bank of America
not later than 3:00 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 Bank of America, each repayment of a Swing Line Loan shall
be in an amount which is an integral multiple of $10,000 or the
aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of Bank of America. Swing Line Loans shall bear interest solely
at the Adjusted Base Rate. If any Event of Default shall occur and be
continuing, Swing Line Loans shall accrue interest at the Default Rate,
and all accrued and unpaid interest on Swing Line Loans shall be
payable, on the dates and in the manner provided in Section 4.3 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 Bank of America a Participation therein
in an amount equal to that Lender's Applicable Commitment Percentage of
such Swing Line Loan. Upon demand made by Bank of America, each Lender
shall, according to its Applicable Commitment Percentage of such Swing
Line Loan, promptly provide to Bank of America its purchase
35
price therefor in an amount equal to its Participation therein. Any
Advance made by a Lender pursuant to demand of Bank of America 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 2.2, 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 Bank of America 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 Borrower, at its option and subject to the terms hereof,
may request an Advance pursuant to Section 2.2 in an amount sufficient
to repay Swing Line Outstandings on any date and the Administrative
Agent shall provide from the proceeds of such Advance to Bank of
America the amount necessary to repay such Swing Line Outstandings
(which Bank of America 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 2.2(c)(ii). The proceeds
of such Advances shall be paid to Bank of America 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.
36
ARTICLE III
Letters of Credit
3.1 LETTERS OF CREDIT. Each Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
such Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to such Issuing Bank; provided, that (i)
no Issuing Bank shall be obligated to issue (or renew) any Letter of Credit if
it has been notified by the Administrative Agent or has actual knowledge that a
Default or Event of Default has occurred and is continuing, (ii) the Letter of
Credit Outstandings shall not exceed the Total Letter of Credit Commitment,
(iii) no Letter of Credit shall be issued (or renewed) if, after giving effect
thereto, Letter of Credit Outstandings plus Revolving Credit Outstandings plus
Swing Line Outstandings shall exceed the Total Revolving Credit Commitment and
(iv) no Issuing Bank may issue a Letter of Credit without first confirming with
the Administrative Agent, in writing, that upon issuance of such Letter of
Credit the requirements of (iii) above will be satisfied. No Letter of Credit
shall have an expiry date (including all rights of the Borrower or any
beneficiary named in such Letter of Credit to require renewal) or payment date
occurring later than the earlier to occur of one year after the date of its
issuance or the fifth Business Day prior to the Stated Termination Date.
3.2 REIMBURSEMENT AND PARTICIPATIONS.
--------------------------------
(a) The Borrower hereby unconditionally agrees to pay to each
Issuing Bank, respectively, immediately on demand at the Principal
Office all amounts required to pay all drafts drawn or purporting to be
drawn under the Letters of Credit issued by such Issuing Bank and all
reasonable expenses incurred by such Issuing Bank in connection with
such Letters of Credit, and in any event and without demand to place in
possession of each Issuing Bank (which shall include Advances under the
Revolving Credit Facility if permitted by Section 2.2 and Swing Line
Loans if permitted by Section 2.5) sufficient funds to pay all debts
and liabilities arising under any Letter of Credit issued thereby. Each
Issuing Bank agrees to give the Borrower prompt notice of any request
for a draw under a Letter of Credit. Each Issuing Bank may charge any
account the Borrower may have with it for any and all amounts such
Issuing Bank pays under a Letter of Credit, plus charges and reasonable
expenses as from time to time agreed to by such Issuing Bank and the
Borrower; provided that to the extent permitted by Section 2.2(c)(iii)
and Section 2.5, amounts shall be paid pursuant to Advances under the
Revolving Credit Facility or, if the Borrower shall elect, by Swing
Line Loans. The Borrower agrees to pay the Issuing Banks interest on
any Reimbursement Obligations not paid when due hereunder at the
Default Rate.
(b) In accordance with the provisions of Section 2.2(c), each
Issuing Bank shall notify the Administrative Agent of any drawing under
any Letter of Credit promptly following the receipt by such Issuing
Bank of such drawing.
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(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit issued thereby in an amount equal to such Lender's Applicable
Commitment Percentage of such liability, and to the extent that the
Borrower is obligated to pay such Issuing Bank under SECTION 3.2(a),
each Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally
obligated to pay to such Issuing Bank, its Applicable Commitment
Percentage of the liability of the Issuing Bank under such Letter of
Credit in the manner and with the effect provided in SECTION
2.2(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to SECTION 2.2(c)(iii)(B), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to
make payment to the Administrative Agent for the account of the Issuing
Bank pursuant to SECTION 2.2(c)(iii) and SECTION 3.2(c), and the right
of the Issuing Bank to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
shall be made without any offset, abatement, withholding or reduction
whatsoever. In the event the Lenders have purchased Participations in
any Reimbursement Obligation as set forth above, then at any time
payment (in fully collected, immediately available funds) of such
Reimbursement Obligation, in whole or in part, is received by the
Issuing Bank from the Borrower, the Issuing Bank shall promptly pay to
each Lender an amount equal to its Applicable Commitment Percentage of
such payment from the Borrower.
(e) Promptly following the end of each calendar quarter, each
Issuing Bank shall deliver to the Administrative Agent a notice
describing the aggregate undrawn amount of all Letters of Credit issued
thereby at the end of such quarter. Upon the request of any Lender from
time to time, each Issuing Bank shall deliver to the Administrative
Agent, and the Administrative Agent shall deliver to such Lender, any
other information reasonably requested by such Lender with respect to
each Letter of Credit outstanding.
(f) The issuance by each Issuing Bank of a Letter of Credit
shall, in addition to the conditions precedent set forth in ARTICLE
VII, be subject to the conditions that such Letter of Credit be in such
form and contain such terms as shall be reasonably satisfactory to such
Issuing Bank consistent with the then current practices and procedures
of such Issuing Bank with respect to similar letters of credit, and the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as such Issuing Bank
shall have reasonably requested consistent with such practices and
procedures and shall not be in conflict with any of the express terms
herein contained. 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
38
Commerce Publication No. 500 or, if the Issuing Bank shall elect by
express reference in an affected Letter of Credit, the International
Chamber of Commerce International Standby Practices commonly referred
to as "ISP98," or any subsequent amendment or revision of either
thereof.
(g) The Borrower agrees that any 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.
(h) Without limiting the generality of the provisions of
SECTION 13.9, the Borrower hereby agrees to indemnify and hold harmless
the Issuing Banks, each other Lender and the Administrative Agent from
and against any and all claims and damages, losses, liabilities,
reasonable costs and expenses which the Issuing Banks, such other
Lender or the Administrative Agent may incur (or which may be claimed
against any Issuing Bank, such other Lender or the Administrative
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 Borrower shall not be required to indemnify any
Issuing Bank, any other Lender or the Administrative Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, (i) caused by the willful misconduct or gross
negligence of the party to be indemnified or (ii) caused by the failure
of such Issuing Bank to pay under any Letter of Credit after the
presentation to it of a request for payment strictly complying with the
terms and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree. The
indemnification and hold harmless provisions of this SECTION 3.2(h)
shall survive repayment of the Obligations, occurrence of the Revolving
Credit Termination Date, the Facility Termination Date and expiration
or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in SECTION
3.2(h), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit issued thereby
and such Issuing Bank's right to receive such payment shall be
absolute, unconditional and irrevocable, and such obligations of the
Borrower shall be performed strictly in accordance with the terms of
this Agreement and such Letters of Credit and the related Application
and Agreement for any Letter of Credit, under all circumstances
whatsoever, including 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 LC Documents");
(ii) any amendment or waiver of or any
consent to or departure from all or any of the Related LC
Documents;
(iii) the existence of any claim, setoff,
defense (other than the defense of payment in accordance with
the terms of this Agreement) or other rights which the
Borrower may have at any time against any beneficiary or any
39
transferee of a Letter of Credit (or any persons or entities
for whom any such beneficiary or any such transferee may be
acting), the Administrative Agent, the Lenders or any other
Person, whether in connection with the Loan Documents, the
Related LC Documents or any unrelated transaction;
(iv) any breach of contract or other dispute
between the Borrower and any beneficiary or any transferee of
a Letter of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the
Administrative Agent, the Lenders or any other Person;
(v) any draft, statement or any other
document presented under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect whatsoever so long as any such document appeared to
comply with the terms of the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, value, or delivery (including the time,
place, manner or order thereof) of property described or
purportedly described in documents presented in connection
with any Letter of Credit or the existence, nature or extent
of any insurance relating thereto;
(vii) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Administrative Agent, with or without notice
to or approval by the Borrower in respect of any of Borrower's
Obligations; or
(viii) any other circumstance or happening
whatsoever where the Issuing Bank has acted in good faith,
whether or not similar to any of the foregoing.
40
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1 INTEREST RATE OPTIONS. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans and Segments of the
Term Loan in accordance with SECTIONS 2.2(c)(i) and 4.2, as applicable;
provided, however, (a) there shall not be outstanding at any one time Eurodollar
Rate Loans having more than eight (8) different Interest Periods, (b) each
Eurodollar Rate Loan (including each Conversion into and each Continuation as a
Eurodollar Rate Loan) shall be in an amount of $2,000,000 or, if greater than
$2,000,000, an integral multiple of $500,000, and (c) no Eurodollar Rate Segment
shall have an Interest Period that extends beyond the Term Loan Termination Date
and no other Eurodollar Rate Loan shall have an Interest Period that extends
beyond the Stated Termination Date. If the Administrative Agent does not receive
a Borrowing Notice or an Interest Rate Selection Notice giving notice of
election of the duration of an Interest Period or of Conversion of any Loan to
or Continuation of a Loan as a Eurodollar Rate Loan by the time prescribed by
SECTIONS 2.2(c)(i) and 4.2, as applicable, the Borrower shall be deemed to have
elected to obtain or Convert such Loan to (or Continue such Loan as) a Base Rate
Loan until the Borrower notifies the Administrative Agent in accordance with
SECTION 4.2. The Borrower shall not be entitled to elect to Continue any Loan as
or Convert any Loan into a Eurodollar Rate Loan if a Default or Event of Default
shall have occurred and be continuing.
4.2 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth in the definition of "Interest Period" and in
SECTION 4.1 and ARTICLE VI, the Borrower may:
(a) upon delivery of notice by facsimile transmission to the
Administrative Agent (which shall be irrevocable) on or before 11:00
A.M. on any Business Day, Convert any Eurodollar Rate Loan to a Base
Rate Loan on the last day of the Interest Period for such Eurodollar
Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of notice by facsimile
transmission to the Administrative Agent (which shall be irrevocable on
or before 2:00 P.M. three (3) Business Days' prior to the date of such
Conversion or Continuation:
(i) elect a subsequent Interest Period for
any Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a
Eurodollar Rate Loan on any Business Day.
41
Each such notice shall be effective upon receipt by the Administrative
Agent, shall specify the amount of the Eurodollar Rate Loan affected,
the type of Loan (Revolving Loan or Segment of the Term Loan) affected,
and, if a Continuation as or Conversion into a Eurodollar Rate Loan,
the Interest Period to be used in the computation of interest. Notice
of receipt of such Borrowing Notice or Interest Rate Selection Notice,
as the case may be, shall be provided by the Administrative Agent to
each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Administrative Agent shall have received such notice
by 1:00 P.M.) not later than 3:00 P.M. on the same day as the
Administrative Agent's receipt of such notice. All such Continuations
or Conversions of Loans shall be effected pro rata based on the
Applicable Commitment Percentages of the Lenders.
4.3 PAYMENT OF INTEREST. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Segment of the Term Loan and on
each Revolving Loan, commencing on the first date of such Segment or Revolving
Loan until such Segment or Revolving Loan, as the case may be, shall be repaid,
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Segment and on each Revolving Loan shall be
paid on the earlier of (a) in the case of any Base Rate Loan, quarterly in
arrears of the last Business Day of each March, June, September and December,
commencing on September 29, 2000, until, as to any Base Rate Segment, the Term
Loan Termination Date, and as to any other Base Rate Loans, the Revolving Credit
Termination Date, at which date as applicable the entire principal amount of and
all accrued interest on the Term Loan and the Revolving Loans, respectively,
shall be paid in full, (b) in the case of any Eurodollar Rate Loan, on last day
of the applicable Interest Period for such Eurodollar Rate Loan and if such
Interest Period extends for more than three (3) months, at intervals of three
(3) months after the first day of such Interest Period, and (c) upon payment in
full of the Term Loan (or Segment thereof) or the related Revolving Loan;
provided, however, that if any Event of Default shall occur and be continuing,
all amounts outstanding hereunder shall bear interest thereafter until paid in
full at the Default Rate.
4.4 PREPAYMENTS OF EURODOLLAR RATE LOANS. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by Section 6.5.
4.5 Manner of Payment.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrower to the Lenders, the Issuing Banks, the
Administrative Agent, or Bank of America with respect to any Loan,
Letter of Credit, or Reimbursement Obligation, or Swing Line Loan,
shall be made to the Administrative Agent at the Principal Office in
Dollars in immediately available funds without condition or deduction
for any setoff,
42
recoupment, deduction or counterclaim on or before 3:00 P.M. on the
date such payment is due. The Administrative Agent may, but shall not
be obligated to, debit the amount of such payment from any one or more
ordinary deposit accounts of the Borrower with the Administrative
Agent.
(b) Any payment made by or on behalf of the Borrower that is
not made both in Dollars in immediately available funds and prior to
3:00 P.M. on the date such payment is to be made shall constitute a
non-conforming payment. Any such non-conforming payment shall not be
deemed to be received until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a
non-conforming payment is made from the date such amount was due and
payable until the later of (i) the date such funds become available
funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of
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 the definition of "Interest
Period"; provided, however, that interest shall continue to accrue
during the period of any such extension; and provided further, however,
that in no event shall any such due date be extended (i) for any Term
Loan, beyond the Term Loan Termination Date, and (ii) for any Revolving
Loan, beyond the Revolving Credit Termination Date.
4.6 FEES.
(a) COMMITMENT FEE. For the period beginning on the Closing
Date and ending on the Revolving Credit Termination Date, the Borrower
agrees to pay to the Administrative Agent, for the pro rata benefit of
the Lenders based on their Applicable Commitment Percentages, a
commitment fee equal to the Applicable Commitment Fee multiplied by the
average daily amount by which the Total Revolving Credit Commitment
exceeds the sum of (i) Revolving Credit Outstandings without giving
effect to Swing Line Outstandings plus (ii) Letter of Credit
Outstandings. Such fees shall be due in arrears on the last Business
Day of each March, June, September and December commencing September
29, 2000 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 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.
(b) LETTER OF CREDIT FACILITY FEES. The Borrower shall pay to
the Administrative Agent, for the pro rata benefit of the Lenders based
on their Applicable Commitment Percentages, a fee on the aggregate
amount available to be drawn on each outstanding Letter of Credit at a
rate equal to the Applicable Margin for Eurodollar Rate Loans. Such
fees shall be due and payable with respect to each Letter of Credit
quarterly
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in arrears on the last Business Day of each March, June, September and
December, the first such payment to be made on the first such date
occurring after the date of issuance of a Letter of Credit.
(c) LETTER OF CREDIT FRONTING AND ADMINISTRATIVE FEES. From
and after the date on which there is more than one Lender, the Borrower
shall pay to each Issuing Bank a fronting fee of .125% per annum on the
aggregate amount available to be drawn on each outstanding Letter of
Credit issued by such Issuing Bank, such fee to be due and payable
quarterly in arrears with respect to each such Letter of Credit on the
dates established in SECTION 4.6(b) for the payment of Letter of Credit
facility fees. The Borrower shall also pay to each Issuing Bank such
administrative fee and other fees, if any, in connection with the
Letters of Credit issued by such Issuing Bank in such amounts and at
such times as such Issuing Bank and the Borrower shall agree from time
to time.
(d) ADMINISTRATIVE AGENT FEES. The Borrower agrees to pay to
the Administrative Agent, for the Administrative Agent's individual
account, an annual Administrative Agent's fee, such fee to be payable
in such amounts and at such dates as from time to time agreed to by the
Borrower and Administrative Agent in writing.
4.7 PRO RATA PAYMENTS. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in SECTION 4.6(a), (b) AND (c), and Swing Line Loans and Reimbursement
Obligations as to which the Lenders have funded their respective Participations
which remain outstanding, shall be made to the Administrative Agent for the
account of the Lenders pro rata based on their Applicable Commitment
Percentages, and (b) the Administrative Agent will promptly distribute to the
Lenders in immediately available funds payments received in fully collected,
immediately available funds from the Borrower.
4.8 COMPUTATION OF RATES AND FEES. Except as may be otherwise expressly
provided, all interest rates (including the Base Rate, each Eurodollar Rate, and
the Default Rate) and fees shall be computed on the basis of a year of 360 days
and calculated for actual days elapsed.
4.9 DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment, Term Loan Commitment or Letter of 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 or the provisions of SECTION 4.10, in
the event any Lender shall fail to advance funds to the Borrower as herein
provided, the Administrative Agent may in its discretion, but shall not be
obligated to, advance under the applicable 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 Note; provided that, (i) such defaulting Lender shall not be entitled to
receive payments of principal, interest or fees
44
with respect to such deficiency advance until such deficiency advance (together
with interest thereon as provided in clause (ii)) shall be paid by such Lender
and (ii) upon payment to the Administrative 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 Administrative Agent by the Borrower on each Loan comprising the
deficiency advance at the Federal Funds Rate, then such payment shall be
credited against the applicable Note of the Administrative Agent in full payment
of such deficiency advance and the Borrower 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 Borrower thereon. In the event any Lender shall fail to fund its purchase
of a Participation after notice from an Issuing Bank or Bank of America as the
Swing Line lender, as applicable, such Lender shall pay to such Issuing Bank or
Bank of America as the Swing Line lender, as applicable, such amount on demand,
together with interest at the Federal Funds Rate on the amount so due from the
date of such notice to the date such purchase price is received by such Issuing
Bank or Bank of America as the Swing Line lender, as applicable.
4.10 INTRADAY FUNDING. Without limiting the provisions of SECTION 4.9,
unless the Borrower or any Lender has notified the Administrative Agent not
later than 12:00 Noon of the Business Day before the date any payment (including
in the case of Lenders any Advance) to be made by it is due, that it does not
intend to remit such payment, the Administrative Agent may, in its discretion,
assume that the Borrower or each Lender, as the case may be, has timely remitted
such payment in the manner required hereunder and may, in its discretion and in
reliance thereon, make available such payment (or portion thereof) to the Person
entitled thereto as otherwise provided herein. If such payment was not in fact
remitted to the Administrative Agent in the manner required hereunder, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the amount
of such assumed payment made available to such Lender, together with
interest thereon in respect of each day from and including the date
such amount was made available by the Administrative Agent to such
Lender to the date such amount is repaid to the Administrative Agent at
the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the
Administrative Agent shall be entitled to recover such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent promptly shall notify the Borrower, and the
Borrower shall promptly repay such corresponding amount to the
Administrative Agent in immediately available funds upon receipt of
such demand. The Administrative Agent also shall be entitled to recover
interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, (A) from such Lender at a rate
per annum equal to the daily Federal Funds Rate or (B) from the
Borrower, at a rate per annum equal to the interest rate applicable to
the Loan which includes such corresponding amount. Until the
Administrative Agent shall recover such corresponding amount together
with interest thereon, such corresponding amount shall constitute a
deficiency advance within the
45
meaning of SECTION 4.9. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its commitments hereunder or to
prejudice any rights which the Administrative Agent or the Borrower may
have against any Lender as a result of any default by such Lender
hereunder.
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ARTICLE V
Security
5.1 SECURITY. As security for the full and timely payment and
performance of all Obligations, the Borrower shall, and shall cause all other
Credit Parties to, on or before the Closing Date, do or cause to be done all
things necessary in the opinion of the Administrative Agent and its counsel to
grant to the Collateral Agent or the Administrative Agent, as the case may be,
for the benefit of the Agents and the Lenders a duly perfected first priority
security interest in all Collateral subject to no prior Lien or other
encumbrance or restriction on transfer (other than restrictions on transfer
imposed by applicable securities laws). Without limiting the foregoing, if
following the Closing Date, the Borrower or any Subsidiary shall have rights in
any Subsidiary Securities the Borrower and any such Subsidiary shall as provided
in SECTION 9.19 deliver to the Administrative Agent, in form and substance
reasonably acceptable to the Administrative Agent, (A) a Pledge Agreement which
shall pledge to the Administrative Agent for the benefit of the Administrative
Agent and the Lenders (i) 65% of the Voting Securities of each Direct Foreign
Subsidiary (or if the Borrower and its Subsidiaries shall own less than 65%,
then all of the Voting Securities owned by them) and 100% of the other
Subsidiary Securities of such Direct Foreign Subsidiary, and (ii) all of the
Subsidiary Securities of all Domestic Subsidiaries, (B) if such Subsidiary
Securities are in the form of certificated securities, such certificated
securities, together with undated stock powers or other appropriate transfer
documents endorsed in blank pertaining thereto, (C) if such Subsidiary
Securities do not constitute securities and the Subsidiary has not elected to
have such interests treated as securities under Article 8 of the Uniform
Commercial Code, a control agreement (containing the provisions described in
SECTION 9.19(e)) from the Registrar of such Subsidiary Securities and (D)
Uniform Commercial Code financing statements reflecting the Lien in favor of the
Administrative Agent on such Subsidiary Securities, each in form and substance
acceptable to the Administrative Agent, and shall take such further action and
deliver or cause to be delivered such further documents as required by the
Security Instruments or otherwise as the Administrative Agent may request to
effect the transactions contemplated by this Article V. The Borrower shall, and
shall cause each Subsidiary, to deliver to the Administrative Agent all of the
documents and instruments in connection with the acquisition of Subsidiary
Securities as are required pursuant to the terms of SECTION 9.19 and of the
Security Instruments.
5.2 FURTHER ASSURANCES. At the request of the Administrative Agent, the
Borrower will or will cause all other Credit Parties, as the case may be, to
execute, by its duly authorized officers, alone or with the Administrative
Agent, any certificate, instrument, financing statement, control agreement,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected costs) which
the Administrative Agent reasonably deems necessary from time to time to create,
continue or preserve the liens and security interests in Collateral (and the
perfection and priority thereof) of the Administrative Agent contemplated hereby
and by the other Loan Documents and specifically including all Collateral
acquired by the Borrower or other Credit Party after the Closing Date. The
Administrative Agent is hereby irrevocably authorized to execute and file or
cause to be filed, with or if permitted by applicable law without the signature
of the Borrower or any Credit Party appearing thereon, all Uniform Commercial
Code financing statements
47
reflecting the Borrower or any other Credit Party as "debtor" and the
Administrative Agent as "secured party", and continuations thereof and
amendments thereto, as the Administrative Agent reasonably deems
necessary or advisable to give effect to the transactions contemplated
hereby and by the other Loan Documents.
5.3 INFORMATION REGARDING COLLATERAL. The Borrower represents, warrants
and covenants that (i) the chief executive office of the Borrower and each other
Person providing Collateral pursuant to a Security Instrument (each, a
"Grantor") at the Closing Date is located at the address or addresses specified
on SCHEDULE 5.3, and (ii) SCHEDULE 5.3 contains a true and complete list of (a)
the exact legal name, jurisdiction of formation, and address of each Grantor and
of each other Person that has effected any merger or consolidation with a
Grantor or contributed or transferred to a Grantor any property constituting
Collateral at any time since January 1, 1995 (excluding Persons making sales in
the ordinary course of their businesses to a Grantor of property constituting
inventory in the hands of such seller), (b) the exact legal name, jurisdiction
of formation, and each location of the chief executive office of each Grantor at
any time since January 1, 1995, (c) each location in which goods constituting
Collateral are or have been located since January 1, 1995 (together with the
name of each owner of the property located at such address if not the applicable
Grantor, and a summary description of the relationship between the applicable
Grantor and such Person), and (d) each trade name, trademark or other trade
style used by any Grantor since January 1, 1995 and the purposes for which it
was used. Borrower shall not change, and shall not permit any other Grantor to
change, its name, jurisdiction of formation (whether by reincorporation, merger
or otherwise), the location of its chief executive office or any location
specified in clause (c) of the immediately preceding sentence, or use or permit
any other Grantor to use, any additional trade name, trademark or other trade
style, except upon giving not less than thirty (30) days' prior written notice
to the Administrative Agent and taking or causing to be taken all such action at
Borrower's or such other Grantor's expense as may be reasonably requested by the
Administrative Agent to perfect or maintain the perfection of the Lien of the
Administrative Agent in Collateral.
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ARTICLE VI
Change in Circumstances
6.1 INCREASED COST AND REDUCED RETURN.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its
Applicable Lending Office) to any tax, duty, or other charge
with respect to any Eurodollar Rate Loans, its Note, or its
obligation to make Eurodollar Rate Loans, or change the basis
of taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement or its Note in
respect of any Eurodollar Rate Loans (other than taxes imposed
on the overall net income of such Lender by the jurisdiction
in which such Lender has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem
applicable any reserve, special deposit, assessment, or
similar requirement (other than the Reserve Requirement
utilized in the determination of the Eurodollar Rate) relating
to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the Term
Loan Commitment or Revolving Credit Commitment of such Lender
hereunder; or
(iii) shall impose on such Lender (or its
Applicable Lending Office) or on the London interbank market
any other condition affecting this Agreement or its Note or
any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Loans, then
the Borrower shall pay to such Lender on demand such amount or amounts
as will compensate such Lender for such increased cost or reduction. If
any Lender requests compensation by the Borrower under this Section
6.1(a), the Borrower may, by notice to such Lender (with a copy to the
Administrative Agent), suspend the obligation of such Lender to make or
Continue Loans of the Type with respect to which such compensation is
requested, or to Convert Loans of any other Type into Loans of such
49
Type, until the event or condition giving rise to such request ceases
to be in effect (in which case the provisions of SECTION 6.4 shall be
applicable); provided that such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this SECTION 6.1 and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to it. Any Lender
claiming compensation under this SECTION 6.1 shall furnish to the
Borrower and the Administrative Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution
methods.
(d) The provisions of this SECTION 6.1 shall continue in
effect notwithstanding the Facility Termination Date.
6.2 LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Administrative Agent determines (which determination
shall be conclusive) that by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Administrative Agent that the Eurodollar
Rate will not adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Rate Loans for such Interest Period;
50
then the Administrative Agent shall give the Borrower prompt notice
thereof specifying the relevant Type of Loans and the relevant amounts
or periods, and so long as such condition remains in effect, the
Lenders shall be under no obligation to make additional Loans of such
Type, Continue Loans of such Type, or to Convert Loans of any other
Type into Loans of such Type and the Borrower shall, on the last day(s)
of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into
another Type of Loan in accordance with the terms of this Agreement.
6.3 ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert other Types of Loans
into Eurodollar Rate Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Rate Loans (in which case the
provisions of Section 6.4 shall be applicable).
6.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to SECTION 6.1
or 6.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by SECTION 6.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in SECTION 6.1 or 6.3 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances specified in SECTION 6.1
or 6.3 hereof that gave rise to the Conversion of such Lender's
Affected Loans pursuant to this SECTION 6.4 no longer exist (which such
Lender agrees to do promptly upon such circumstances ceasing to exist)
at a time when Loans of the Affected Type made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the
extent necessary so that, after giving effect thereto, all Loans held
by the Lenders holding Loans of the Affected Type and by such Lender
are held pro rata (as to principal
51
amounts, Types, and Interest Periods) in accordance with their
respective Term Loan Commitments and Revolving Credit Commitments.
6.5 COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(i) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to SECTION 11.1) on a date other
than the last day of the Interest Period for such Loan; or
(ii) any failure by the Borrower (for any reason, including
the failure of any condition precedent specified in ARTICLE VII to be
satisfied, other than the failure of such Lender to make a Loan
notwithstanding satisfaction of all conditions precedent thereto) to
borrow, Convert, Continue, or prepay a Eurodollar Rate Loan on the date
for such borrowing, Conversion, Continuation, or prepayment specified
in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
The provisions of this SECTION 6.5 shall continue in effect
notwithstanding the Facility Termination Date.
6.6 TAXES.
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Administrative Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for
any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the laws of which such Lender (or its
Applicable Lending Office) or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Administrative Agent, (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this SECTION 6.6) such Lender or the Administrative Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law, and (iv) the Borrower shall furnish to the Administrative Agent,
at its address referred to in SECTION 13.2, the original or a certified
copy of a receipt evidencing payment thereof.
52
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this SECTION 6.6)
paid by such Lender or the Administrative Agent (as the case may be)
and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the
Administrative Agent (but only so long as such Lender remains lawfully
able to do so), shall provide the Borrower and the Administrative Agent
with (i) Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 (including Form W-8BEN or W-8EC1) or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Administrative Agent with the
appropriate form pursuant to SECTION 6.6(d) (unless such failure is due
to a change in treaty, law, or regulation occurring subsequent to the
date on which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under SECTION 6.6(a) or
6.6(b) with respect to Taxes imposed by the United States; provided,
however, that should a Lender, which is otherwise exempt from or
subject to a reduced rate of withholding tax, become subject to Taxes
because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall reasonably request
to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this SECTION 6.6, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
53
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing such payment.
(h) The provisions of this SECTION 6.6 shall continue in
effect notwithstanding the Facility Termination Date.
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ARTICLE VII
Conditions to Making Loans and Issuing Letters of Credit
7.1 CONDITIONS OF TERM LOAN AND INITIAL ADVANCE. The obligation of the
Lenders to enter into this Agreement and to make the Term Loan and the initial
Advance under the Revolving Credit Facility as amended by this Agreement, and of
the Issuing Banks to issue any Letter of Credit, and of Bank of America to make
any Swing Line Loan, is subject to the conditions precedent that:
(a) the Administrative Agent, or with respect to the Security
Instruments, the Collateral Agent, shall have received on the Closing
Date, in form and substance satisfactory to the Administrative Agent
and Lenders, the following:
(i) executed originals of each of this Agreement, the
Notes, the Security Instruments, the LC Account Agreement, the
other Loan Documents, together with all schedules and exhibits
thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of special counsel to the Credit Parties
dated the Closing Date, addressed to the Administrative Agent
and the Lenders and satisfactory to Xxxxx Xxxxx Mulliss &
Xxxxx, L.L.P., special counsel to the Administrative Agent,
substantially in the form of EXHIBIT G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed
55
name, issued in respect of each of the Credit Parties 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;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) certificate of an Authorized Representative dated
the Closing Date demonstrating compliance with the financial
covenants contained in Sections 10.1(a) through 10.1(c) as of
the end of the fiscal quarter most recently ended prior to the
Closing Date, substantially in the form of EXHIBIT H;
(xi) evidence of all insurance required by the Loan
Documents;
(xii) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xiii) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the
Collateral Agent or Administrative Agent, as the case may be,
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law to perfect the Liens of the
Collateral Agent or Administrative Agent, as the case may be,
under the Security Instruments as a first priority Lien in and
to such other Collateral as the Administrative Agent may
require;
(xiv) evidence that all fees payable by the Borrower
on the Closing Date to the Administrative Agent, BAS and the
Lenders have been paid in full, including the due diligence
expenses of the Administrative Agent and the fees and expenses
of counsel for the Administrative Agent to the extent invoiced
prior to or on the Closing Date (which may include amounts
constituting reasonable estimates of such fees and expenses
incurred or to be incurred in connection with the transaction;
provided that no such estimate shall thereafter preclude the
final settling of accounts as to such fees and expenses);
(xv) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Lenders;
(xvi) an environmental assessment of the Mortgage
Property acceptable to the Administrative Agent, prepared by
an independent third party acceptable to the Administrative
Agent;
(xvii) evidence satisfactory to the Administrative
Agent of the dissolution and winding up of AmeriSteel Finance,
Inc.; and
56
(xviii) such other documents, instruments,
certificates and opinions as the Administrative Agent or any
Lender may reasonably request on or prior to the Closing Date
in connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Administrative Agent and
the Lenders:
(i) there shall not have occurred or become known to
the Administrative Agent or the Lenders any event, condition,
situation or status since the date of the information
contained in the financial and business projections, budgets,
pro forma data and forecasts concerning the Borrower and its
Subsidiaries delivered to the Administrative Agent prior to
the Closing Date that has had or would reasonably be expected
to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect; and
(iii) the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Credit
Parties is a party or by which any of them or their properties
is bound.
7.2 CONDITIONS OF REVOLVING LOANS AND LETTERS OF CREDIT. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Banks to
issue (or renew) Letters of Credit and Bank of America to make Swing Line Loans,
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Administrative Agent or, in the case of Swing Line
Loans, Bank of America shall have received a Borrowing Notice if
required by ARTICLE II;
(b) the representations and warranties of the Credit Parties
set forth in ARTICLE VIII 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, Swing Line Loan or Letter of Credit issuance or renewal,
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 8.6(a)
shall be deemed (solely for the purpose of the representation and
warranty contained in such SECTION 8.6(a) but not for the purpose of
any cross reference to such SECTION 8.6(a) or to the financial
statements described therein contained in any other provision of
SECTION 8.6 or elsewhere in ARTICLE VIII) to be those financial
statements most recently delivered to the Administrative Agent and the
Lenders pursuant
57
to SECTION 9.1 from the date financial statements are delivered to the
Administrative Agent and the Lenders in accordance with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to (i) the Issuing Bank of
its selection an Application and Agreement for Letter of Credit in form
and content acceptable to such Issuing Bank together with such other
instruments and documents as it shall request and (ii) the
Administrative Agent, notice that it has requested such Issuing Bank to
issue such Letter of Credit;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in Article XI shall have occurred and be
continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of an Issuing Bank with respect to Letters of Credit
issued by such Issuing Bank, its remaining interest after
deduction of all Participations in such Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $15,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the Total Revolving Credit
Commitment.
Section 7.3. SUPPLEMENTS TO SCHEDULES. The Borrower may, from time to
time but in no event less than five (5) Business Days prior to delivery of any
Borrowing Notice hereunder, amend or supplement Schedules 8.10 and 8.18 to this
Agreement by delivering (effective upon receipt) to the Administrative Agent and
each Lender a copy of such revised Schedule or Schedules which shall (i) be
dated the date of delivery, (ii) be certified by an Authorized Representative as
true, complete and correct as of such date and as delivered in replacement for
the corresponding Schedule or Schedules previously in effect, and (iii) show in
reasonable detail (by blacklining or other graphic means) the material changes
from each such corresponding predecessor Schedule. In the event the Required
Lenders determine based upon such revised
58
Schedules (whether individually or in the aggregate) that there has been a
material change which would have a Material Adverse Effect since the Closing
Date, or such later date as the Borrower shall have most recently furnished
supplements to Schedules under this SECTION 7.3 or financial statements under
Section 9.1 (a) or (b), the Lenders, upon notification to the Borrower, shall
have no further obligation to make Advances or Continue or Convert any Loan
previously made or renew or extend existing Letters of Credit.
59
ARTICLE VIII
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
8.1 ORGANIZATION AND AUTHORITY.
(a) The Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which failure so to qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party (other than the Borrower), if any, has
the power and authority to execute, deliver and perform the Facility
Guaranty and each of the other Loan Documents to which it is a party;
and
(e) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity).
8.2 LOAN DOCUMENTS. The execution, delivery and performance by each
Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
60
(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 contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
or any Subsidiary except any Liens in favor of the Collateral Agent,
the Administrative Agent and the Lenders created by the Security
Instruments.
8.3 SOLVENCY. Each Credit Party is Solvent after giving effect to the
transactions contemplated by the Loan Documents.
8.4 SUBSIDIARIES AND STOCKHOLDERS. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in SCHEDULE 8.4 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
SECTION 9.19; SCHEDULE 8.4 states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
non-assessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in SCHEDULE
8.4, free and clear of any Lien.
8.5 OWNERSHIP INTERESTS. Borrower owns no interest in any Person other
than the Persons listed in SCHEDULE 8.4, equity investments in Persons not
constituting Subsidiaries permitted under SECTION 10.7 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
SECTION 9.19.
8.6 FINANCIAL CONDITION.
(a) The Borrower has heretofore furnished to each Lender an
audited consolidated balance sheet of the Borrower and its Subsidiaries
as at March 31, 2000 and the notes thereto and the related consolidated
statements of operations, stockholders' equity and cash flows for the
Fiscal Year then ended as examined and certified by Xxxxxx Xxxxxxxx,
LLP, and unaudited consolidated interim financial statements of the
Borrower and its Subsidiaries consisting of a consolidated balance
sheet and related consolidated statements of operations, stockholders'
equity and cash flows, in each case without notes, for and as of the
end of the three-month period ending June 30, 2000. Except as set forth
therein, such financial statements (including the notes thereto)
present fairly the financial condition of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and three-month period
and results of their operations and the changes in its stockholders'
61
equity for the Fiscal Year and interim period then ended, all in
conformity with GAAP applied on a Consistent Basis, subject however, in
the case of unaudited interim statements to year end audit adjustments
and other customary adjustments;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to SECTION 8.6(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
SECTION 9.1(a) hereof, there has not occurred any event, condition or
circumstance which has had or could reasonably be expected to have a
Material Adverse Effect, nor have the businesses or properties of the
Borrower or any Subsidiary been materially adversely affected as a
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God; and
(c) except as set forth in the financial statements referred
to in SECTION 8.6(a) or in Schedule 8.6 or permitted by SECTION 10.5,
neither the Borrower nor any Subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness, Guaranties or
other commitment or liability which remains outstanding or unsatisfied.
8.7 TITLE TO PROPERTIES. The Borrower and each of its Subsidiaries and
each other Credit Party has good and marketable title to all its real and
personal properties, subject to no transfer restrictions or Liens of any kind,
except for the transfer restrictions and Liens described in SCHEDULE 8.7 and
Liens permitted by SECTION 10.4.
8.8 TAXES. Except as set forth in Schedule 8.8, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in SECTION 8.6(a) or SECTIONS 9.1(a) OR (b) and satisfactory to the
Borrower's independent certified public accountants have been established, have
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due.
8.9 OTHER AGREEMENTS. No Credit Party nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate would reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party or any Subsidiary is
a party, which default has, or if not remedied within any applicable
grace period would reasonably be likely to have, a Material Adverse
Effect.
8.10 LITIGATION. Except as set forth in SCHEDULE 8.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality
62
or agency or arbitral body pending, or, to the knowledge of the Borrower,
threatened by or against the Borrower or any Subsidiary or other Credit Party or
affecting the Borrower or any Subsidiary or other Credit Party or any properties
or rights of the Borrower or any Subsidiary or other Credit Party, which would
reasonably be likely to have a Material Adverse Effect.
8.11 MARGIN STOCK. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. 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 violates or which would be
inconsistent with Regulation U (12 CFR Part 221) or Regulation X (12 CFR Part
224) of the Board. Neither the Borrower nor any agent acting in its 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.
8.12 REGULATED COMPANY. No Credit Party is (i) 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. ? 80a-1, et seq.) or (ii) a "holding company" or a
"subsidiary company" or "affiliate" of a "holding company" as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended. The
application of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower and the other Credit Parties of the
transactions contemplated by the Loan Documents will not violate any provision
of said Act, or any rule, regulation or order issued by the Securities and
Exchange Commission thereunder, in each case as in effect on the date hereof.
8.13 PATENTS, ETC. The Borrower and each other Credit Party owns or has
the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person,
except in each case where the use or conflict would not reasonably be likely to
have a Material Adverse Effect.
8.14 NO UNTRUE STATEMENT. Neither (a) this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on behalf of
the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Administrative Agent in connection with the negotiation or preparation of the
Loan Documents contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the circumstance
under which it was made, in order to make any such warranty, representation or
statement contained therein not misleading.
63
8.15 NO CONSENTS, ETC. Neither the respective businesses or properties
of the Credit Parties or any Subsidiary, nor any relationship among the Credit
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby, is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person on the part of any Credit Party as a
condition to the execution, delivery and performance of, or consummation of the
transactions contemplated by the Loan Documents, which, if not obtained or
effected, would be reasonably likely to have a Material Adverse Effect, or if
so, such consent, approval, authorization, filing, registration or qualification
has been duly obtained or effected, as the case may be.
8.16 EMPLOYEE BENEFIT PLANS.
(a) Except where noncompliance would not have a Material
Adverse Effect or result in a liability or potential liability
exceeding $1,000,000, the 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
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 (or the Borrower or its
Subsidiaries are in the process of obtaining a determination by the
Internal Revenue Service) to be so qualified, each trust related to
such plan has been determined to be exempt under Section 501(a) of the
Code, and each Employee Benefit Plan subject to any Foreign Benefit Law
has received the required approvals by any Governmental Authority
regulating such Employee Benefit Plan. No material liability has been
incurred by the Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor
64
any ERISA Affiliate has incurred any unpaid withdrawal liability with
respect to any Multiemployer Plan;
(d) Except to the extent permitted by ERISA, the present value
of all vested accrued benefits under each Employee Benefit Plan which
is subject to Title IV of ERISA, or the funding of which is regulated
by any Foreign Benefit Law did not, as of the most recent valuation
date for each such plan, exceed the then current value of the assets of
such Employee Benefit Plan allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan.
8.17 NO DEFAULT. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
8.18 ENVIRONMENTAL LAWS. Except as listed on SCHEDULE 8.18, the
Borrower and each Subsidiary is in material compliance with all applicable
Environmental Laws and has been issued and currently maintains all required
federal, state and local permits, licenses, certificates and approvals. Except
as listed on SCHEDULE 8.18, neither the Borrower nor any Subsidiary has been
notified of any pending or threatened action, suit, proceeding or investigation,
and neither the Borrower nor any Subsidiary is aware of any facts, which (a)
calls into question, or would reasonably be expected to call into question,
material compliance by the Borrower or any Subsidiary with any Environmental
Laws, (b) seeks, or would reasonably be expected to form the basis of a
meritorious proceeding, to suspend, revoke or terminate any material license,
permit or approval necessary for the operation of the Borrower's or any
Subsidiary's business or facilities or for the generation, handling, storage,
treatment or disposal of any Hazardous Materials, or (c) seeks to cause, or
would reasonably be expected to form the basis of a meritorious proceeding to
cause, any property of the Borrower or any Subsidiary or other Credit Party to
be subject to any material restrictions on ownership, use, occupancy or
transferability under any Environmental Law.
65
8.19 EMPLOYMENT MATTERS.
(a) None of the employees of the Borrower or any Subsidiary is
subject to any collective bargaining agreement and 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 the Borrower, threatened against
the Borrower or any Subsidiary or between the Borrower or any
Subsidiary and any of its employees, other than employee grievances
arising in the ordinary course of business which would not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect; and
(b) Except to the extent a failure to maintain compliance
would not reasonably be expected to have a Material Adverse Effect, the
Borrower and each Subsidiary is in compliance in all 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 litigation, administrative proceeding nor, to
the knowledge of the Borrower, any investigation, in respect of such
matters which, if decided adversely, would reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
8.20 RICO. Neither the Borrower nor any Subsidiary is engaged in or has
engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
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ARTICLE IX
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
9.1 FINANCIAL REPORTS, ETC.
(a) As soon as practical and in any event within 90 days after
the end of each Fiscal Year of the Borrower, deliver or cause to be
delivered to the Administrative Agent and each Lender (i) the balance
sheet of the Borrower and its Subsidiaries as at the end of such Fiscal
Year, and the notes thereto, and the related statements of operations,
stockholders' equity and cash flows, and the respective notes thereto,
for such Fiscal Year, setting forth comparative financial statements
for the preceding Fiscal Year with a narrative discussion of the
comparative financial results and financial condition of the two
periods, all prepared in accordance with GAAP applied on a Consistent
Basis and containing, with respect to the financial statements,
opinions of Xxxxxx Xxxxxxxx, LLP, or other such independent certified
public accountants selected by the Borrower and approved by the
Administrative Agent, which are unqualified as to the scope of the
audit performed and as to the "going concern" status of the Borrower
and without any exception not acceptable to the Required Lenders, and
(ii) a certificate of an Authorized Representative demonstrating
compliance with SECTIONS 10.1(a) through 10.1(c), 10.3 and 10.5(f) and
(g) which certificate shall be in the form of EXHIBIT H; to the extent
that the Borrower's annual report on Form 10-K contains any of the
foregoing items, the Administrative Agent and the Lenders will accept
the Borrower's Form 10-K in lieu of such items;
(b) as soon as practical and in any event within 45 days after
the end of each fiscal quarter (except the last fiscal quarter of the
Fiscal Year), deliver to the Administrative Agent and each Lender (i)
balance sheets of the Borrower and its Subsidiaries as at the end of
such fiscal quarter, and the related statements of operations,
stockholders' equity and cash flows for such fiscal quarter and for the
comparable fiscal quarter in the prior Fiscal Year with a narrative
discussion of the comparative financial results and financial condition
of the two periods, and accompanied by a certificate of an Authorized
Representative to the effect that such financial statements present
fairly the financial position of the Borrower and its Subsidiaries as
of the end of such fiscal period and the results of their operations
and the changes in their financial position for such fiscal period,
subject to year-end audit and other customary adjustments to interim
financial statements, and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to
that required pursuant to SECTION 9.1(a)(ii); to the extent that the
Borrower's quarterly report on Form 10-Q contains any of the foregoing
items, the Administrative Agent and the Lenders will accept the
Borrower's Form 10-Q in lieu of such items;
67
(c) together with each delivery of the financial statements
required by SECTION 9.1(a)(i), deliver to the Administrative Agent and
each Lender a letter from the Borrower's accountants specified in
SECTION 9.1(a)(i) stating that in performing the audit necessary to
render an opinion on the financial statements delivered under SECTION
9.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions
of this Agreement insofar as they relate to financial matters (which at
the date of such statement remains uncured); or if the accountants have
obtained knowledge of such Default or Event of Default, a statement
specifying the nature and period of existence thereof;
(d) promptly upon their becoming available to the Borrower,
the Borrower shall deliver to the Administrative Agent and each Lender
a copy of (i) all regular or special reports or effective registration
statements which Borrower or any Subsidiary shall file with the
Securities and Exchange Commission (or any successor thereto) or any
securities exchange, (ii) any proxy statement distributed by the
Borrower or any Subsidiary to its shareholders, bondholders or the
financial community in general, and (iii) any management letter or
other report submitted to the Borrower or any Subsidiary by independent
accountants in connection with any annual, interim or special audit of
the Borrower or any Subsidiary;
(e) not later than ninety (90) days after the last Business
Day of each Fiscal Year, deliver to the Administrative Agent and each
Lender a projection of the expected financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated basis
for the upcoming Fiscal Year (including, but not limited to, a
projected consolidated balance sheet, statement of operations,
statement of cash flows and statement of changes in stockholder's
equity, and including a detailed breakdown of proposed Capital
Expenditures, with a narrative discussion of the assumptions behind the
projections); and
(f) promptly, from time to time, deliver or cause to be
delivered to the Administrative Agent and each Lender such other
information regarding Borrower's and any Subsidiary's operations,
business affairs and financial condition as the Administrative Agent or
such Lender may reasonably request;
The Administrative Agent and the Lenders are hereby authorized to
deliver a copy of any such financial or other information delivered hereunder to
the Lenders (or any affiliate of any Lender) or to the Administrative Agent, to
any Governmental Authority having jurisdiction over the Administrative Agent or
any of the Lenders pursuant to any written request therefor or in the ordinary
course of examination of loan files, or to any other Person who shall acquire or
consider the assignment of, or acquisition of any participation interest in, any
Obligation permitted by this Agreement.
9.2 MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate
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licenses thereto), in each case as are reasonably necessary to conduct its
business as currently conducted or as contemplated hereby, all in accordance
with customary and prudent business practices.
9.3 EXISTENCE, QUALIFICATION, ETC. Except as otherwise expressly
permitted under Section 10.8, or except to the extent the failure would not
reasonably be expected to have a Material Adverse Effect, do or cause to be done
all things necessary to preserve and keep in full force and effect its existence
and all material rights and franchises, and maintain its license or
qualification to do business as a foreign corporation and good standing in each
jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary.
9.4 REGULATIONS AND TAXES. Comply in all material respects with 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 provided that (i) adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP and
(ii) any Lien arising in connection with any such contest shall be permitted to
exist to the extent provided in SECTION 10.4.
9.5 INSURANCE. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and otherwise as required by the Security Instruments, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) and against loss by reason by business interruption such
policies of insurance to have such limits, deductibles, exclusions, co-insurance
and other provisions providing no less coverages than that specified in SCHEDULE
9.5, such insurance policies which insure the Collateral to be in form
reasonably satisfactory to the Administrative Agent. Each of the policies of
insurance described in this SECTION 9.5 insuring any of the Collateral shall
provide that the insurer shall give the Administrative Agent not less than
thirty (30) days' prior written notice before any such policy shall be
terminated, lapse or be altered in any manner.
9.6 TRUE BOOKS. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
9.7 RIGHT OF INSPECTION. Permit any Person designated by any Lender,
the Administrative Agent or the Collateral Agent to visit and inspect any of the
properties, corporate books and financial reports of the Borrower or any
Subsidiary and to discuss its affairs, finances
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and accounts with its principal officers and independent certified public
accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice.
9.8 OBSERVE ALL LAWS. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business.
9.9 GOVERNMENTAL LICENSES. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect.
9.10 COVENANTS EXTENDING TO OTHER PERSONS. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 9.2 through 9.9, and 9.18
inclusive.
9.11 OFFICER'S KNOWLEDGE OF DEFAULT. Upon either the Chief Executive
Officer, the Chief Financial Officer or Treasurer of the Borrower obtaining
knowledge of any Default or Event of Default hereunder or under any other
obligation of the Borrower or any Subsidiary or other Credit Party to any
Lender, or any event, development or occurrence which would reasonably be
expected to have a Material Adverse Effect, cause such officer or an Authorized
Representative to promptly notify the Administrative Agent of the nature
thereof, the period of existence thereof, and what action the Borrower or such
Subsidiary or other Credit Party proposes to take with respect thereto.
9.12 SUITS OR OTHER PROCEEDINGS. Upon either the Chief Executive
Officer, the Chief Financial Officer or Treasurer of the Borrower obtaining
knowledge of any litigation or other proceedings being instituted against the
Borrower or any Subsidiary or other Credit Party, or any attachment, levy,
execution or other process being instituted against any assets of the Borrower
or any Subsidiary or other Credit Party, making a claim or claims in an
aggregate amount greater than $10,000,000 not otherwise covered by insurance,
promptly deliver to the Administrative Agent written notice thereof stating the
nature and status of such litigation, dispute, proceeding, levy, execution or
other process.
9.13 NOTICE OF ENVIRONMENTAL COMPLAINT OR CONDITION. Promptly provide
to the Administrative Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims or citations received by the
Borrower or any Subsidiary relating to any (a) violation or alleged violation by
the Borrower or any Subsidiary of any applicable Environmental Law; (b) release
or threatened release by the Borrower or any Subsidiary, or by any Person
handling, transporting or disposing of any Hazardous Material on behalf of the
Borrower or any Subsidiary, or at any facility or property owned or leased or
operated by the Borrower or any Subsidiary, of any Hazardous Material, except
where occurring legally pursuant to a permit or license; or (c) liability or
alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials, to
the extent such violation, alleged violation, release, threatened release,
liability or alleged liability would reasonably be expected to have a Material
Adverse Effect.
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9.14 ENVIRONMENTAL COMPLIANCE. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law,
has released any Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials, the
Borrower and any Subsidiary shall, within the time period permitted and to the
extent required by the applicable Environmental Law or the Governmental
Authority responsible for enforcing such Environmental Law, remove or remedy, or
cause the applicable Subsidiary to remove or remedy, such violation or release
or satisfy such liability.
9.15 INDEMNIFICATION. Without limiting the generality of Section 13.9,
the Borrower hereby agrees to indemnify and hold the Administrative Agent and
the Lenders and any affiliate of any Lender party to a Swap Agreement, and their
respective officers, directors, employees and agents, harmless from and against
any and all claims, losses, penalties, liabilities, damages and expenses
(including assessment and cleanup costs and reasonable attorneys', consultants'
or other expert fees, expenses and disbursements) arising directly or indirectly
from, out of or by reason of (a) the violation of any Environmental Law by the
Borrower or any Subsidiary or with respect to any property owned, operated or
leased by the Borrower or any Subsidiary or (b) the handling, storage,
transportation, treatment, emission, release, discharge or disposal of any
Hazardous Materials by or on behalf of the Borrower or any Subsidiary, or on or
with respect to property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 9.15 shall continue in effect
notwithstanding the Facility Termination Date.
9.16 FURTHER ASSURANCES. At the Borrower's cost and expense, upon
request of the Administrative Agent, duly execute and deliver or cause to be
duly executed and delivered, to the Administrative Agent 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 Administrative Agent to carry out
more effectively the provisions and purposes of this Agreement, the Security
Instruments and the other Loan Documents.
9.17 EMPLOYEE BENEFIT PLANS.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Administrative Agent of (a) the
establishment of any new Pension Plan (which notice shall include a
copy of such plan), (b) the commencement of contributions to any
Employee Benefit Plan to which the Borrower or any of its ERISA
Affiliates was not previously contributing, (c) any material increase
in the benefits of any existing Employee Benefit Plan, (d) each funding
waiver request filed with respect to any Pension Plan and all
communications received or sent by the Borrower or any ERISA Affiliate
with respect to such request and (e) the failure of the Borrower or any
ERISA Affiliate to make a required installment or payment under Section
302 of ERISA or Section 412 of the Code (in the case of Employee
Benefit Plans regulated by the Code or ERISA) or under any Foreign
Benefit Law (in the case of Employee Benefit Plans regulated by any
Foreign Benefit Law) exceeding in the aggregate $750,000 by the due
date;
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(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Administrative Agent a notice specifying the
nature thereof, what action the Borrower or any ERISA Affiliate has
taken, is taking or proposes to take with respect thereto and, when
known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Administrative 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 Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority'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 Borrower or any ERISA Affiliate with the Internal
Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA. The Borrower
will notify the Administrative Agent in writing within five (5)
Business Days of the Borrower or any ERISA Affiliate obtaining
knowledge or reason to know that the 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.
9.18 CONTINUED OPERATIONS. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
9.19 NEW SUBSIDIARIES. Simultaneously with the acquisition or creation
of any Subsidiary, cause to be delivered to the Administrative Agent each of the
following:
(a) if such Subsidiary is a Domestic Subsidiary, a Facility
Guaranty executed by such Subsidiary substantially in the form of
EXHIBIT I;
(b) a Security Agreement of such Subsidiary substantially in
the form of EXHIBIT J, together with such Uniform Commercial Code
financing statements on Form UCC-1 or otherwise duly executed by such
Subsidiary as "Debtor" and naming the Collateral Agent for the benefit
of the Collateral Agent, the Administrative Agent and the Lenders as
"Secured Party," in form, substance and number sufficient in the
reasonable opinion of the Administrative Agent and its special counsel
to be filed in all Uniform Commercial Code filing offices in all
jurisdictions in which filing is necessary or advisable to perfect in
favor of the Collateral Agent for the benefit of the Collateral Agent,
the Administrative Agent and the Lenders the Lien on Collateral
conferred under
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such Security Instrument to the extent such Lien may be perfected by
Uniform Commercial Code filing;
(c) if the Subsidiary Securities issued by such Subsidiary
that are, or are required to become, Pledged Interests, shall be owned
by a Subsidiary who has not then executed and delivered to the
Administrative Agent a Pledge Agreement granting a Lien to the
Collateral Agent, for the benefit of the Collateral Agent, the
Administrative Agent and the Lenders, in such equity interests, a
Pledge Agreement executed by the Subsidiary that directly owns such
Subsidiary Securities substantially in the form attached hereto as
Exhibit K (or, as to the Pledged Interests issued by any Direct Foreign
Subsidiary, in a form acceptable to the Administrative Agent), and if
such Subsidiary Securities shall be owned by the Borrower or a
Subsidiary who has previously executed a Pledge Agreement, a Pledge
Agreement Supplement in the form required by such Pledge Agreement
pertaining to such Subsidiary Securities;
(d) if the Pledged Interests issued by such Subsidiary
constitute securities under Article 8 of the Uniform Commercial Code
(i) the certificates representing 100% of such Subsidiary Securities
and (ii) duly executed, undated stock powers or other appropriate
powers of assignment in blank affixed thereto;
(e) (i) Uniform Commercial Code financing statements on form
UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming
the Collateral Agent for the benefit of the Collateral Agent, the
Administrative Agent and the Lenders as "Secured Party," in form,
substance and number sufficient in the reasonable opinion of the
Administrative Agent and its special counsel to be filed in all Uniform
Commercial Code filing offices and in all jurisdictions in which filing
is necessary or advisable to perfect in favor of the Collateral Agent
for the benefit of the Collateral Agent, the Administrative Agent and
the Lenders the Lien on such Subsidiary Securities and (ii) if the
Pledged Interests issued by such Subsidiary do not constitute
securities and such Subsidiary has not elected to have such interests
treated as securities under Article 8 of the applicable Uniform
Commercial Code, a control agreement from the Registrar of such
Subsidiary, in form and substance acceptable to the Administrative
Agent and in which the Registrar (1) acknowledges that the pledgor is
at the date of such acknowledgment the sole record, and to its
knowledge, beneficial owner of such Subsidiary Securities, (2)
acknowledges the Lien in favor of the Collateral Agent conferred under
the Pledge Agreement and that such Lien will be reflected on the
registry for such Subsidiary Securities, (3) agrees that it will not
register any transfer of such Subsidiary Securities nor acknowledge any
Lien in favor of any other Person on such Subsidiary Securities,
without the prior written consent of the Administrative Agent, in each
instance, until it receives notice from the Administrative Agent that
all Liens on such Collateral in favor of the Collateral Agent for the
benefit of the Collateral Agent, the Administrative Agent and the
Lenders have been released or terminated, and (4) agrees that upon
receipt of notice from the Administrative Agent that an Event of
Default has occurred and is continuing and that the Subsidiary
Securities identified in such notice have been transferred to a
transferee identified in such notice, it will duly record such transfer
of Subsidiary Securities on the appropriate registry without requiring
further consent from the pledgor and shall thereafter treat the
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transferee as the sole record and beneficial owner of such Subsidiary
Securities pending further transfer, notwithstanding any contrary
instruction received from the pledgor;
(f) a supplement to the appropriate schedule attached to the
appropriate Security Instruments listing the additional Collateral,
certified as true, correct and complete by the Authorized
Representative (provided that the failure to deliver such supplement
shall not impair the rights conferred under the Security Instruments in
after acquired Collateral);
(g) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Facility Guaranty and other Loan Documents
provided for in this SECTION 9.19 and addressed to the Collateral
Agent, the Administrative Agent and the Lenders, in form and substance
reasonably acceptable to the Administrative Agent (which opinion may
include assumptions and qualifications of similar effect to those
contained in the opinions of counsel delivered pursuant to SECTION
7.1(a)), to the effect that:
(i) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then
conducted and proposed to be conducted and to execute, deliver
and perform the Facility Guaranty and other Loan Documents
described in this SECTION 9.19 to which such Subsidiary is a
signatory, and is duly qualified to transact business and is
in good standing as a foreign corporation or partnership in
each other jurisdiction in which the character of the
properties owned or leased, or the business carried on by it,
requires such qualification and the failure to be so qualified
would reasonably be likely to result in a Material Adverse
Effect;
(ii) the execution, delivery and performance of the
Facility Guaranty and other Loan Documents described in this
SECTION 9.19 to which such Subsidiary is a signatory have been
duly authorized by all requisite corporate or partnership
action (including any required shareholder or partner
approval), each of such agreements has been duly executed and
delivered and constitutes the valid and binding agreement of
such Subsidiary, enforceable against such Subsidiary in
accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general
principles of equity (whether considered in a proceeding at
law or in equity); [and
(iii) the Subsidiary Securities of such Subsidiary
are duly authorized, validly issued, fully paid and
nonassessable, and free of any preemptive rights, and the
applicable Security Instrument (including foreign collateral
documents) is effective to create a valid security interest in
favor of the Collateral Agent for the benefit of the
Collateral Agent, the Administrative Agent and the Lenders in
such Subsidiary Securities as constitute Pledged Interests;
and
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(iv) the Uniform Commercial Code financing statements
on Form UCC-1 delivered to the Administrative Agent by the
Subsidiary in connection with the delivery of the Security
Instruments of such Subsidiary have been duly executed by the
Subsidiary and are in form, substance and number sufficient
for filing in all Uniform Commercial Code filing offices in
all jurisdictions in which filing is necessary to perfect in
favor of the Collateral Agent for the benefit of the
Collateral Agent, the Administrative Agent and the Lenders the
Lien on Collateral conferred under such Security Instruments
to the extent such Lien may be perfected by Uniform Commercial
Code filing; and
(v) in the case of Direct Foreign Subsidiaries only,
that under the laws of the applicable foreign jurisdiction,
all agreements, notices and other documents that are required
to be executed, delivered, filed or recorded and all other
action required to be taken, within or pursuant to the laws of
such jurisdiction to perfect the Lien conferred in favor of
the Administrative Agent under the applicable Security
Instrument as against creditors of and purchasers for value
from the holder of the Pledged Interests has been duly
executed, delivered, filed, recorded or taken, as the case may
be; and
(h) current copies of the Organizational Documents and
Operating Documents of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such Organizational Documents, Operating Documents or
applicable law, of the shareholders, members or partners) of such
Subsidiary authorizing the actions and the execution and delivery of
documents described in this Section 9.19.
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ARTICLE X
Negative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
10.1 FINANCIAL COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. Permit at any time the
Consolidated Leverage Ratio to be greater than 3.75 to 1.00.
(b) CONSOLIDATED NET WORTH. Permit Consolidated Net Worth to
be less than (i) $180,000,000 from the Closing Date until (but
excluding) the last day of the fiscal quarter that includes the Closing
Date (the "Closing Date Quarter"), and (ii) as at the last day of each
fiscal quarter of the Borrower ending after the Closing Date and until
(but excluding) the last day of the next following fiscal quarter of
the Borrower, the sum of (A) the amount of Consolidated Net Worth
required to be maintained pursuant to this Section 10.1(b) as at the
end of the immediately preceding fiscal quarter (or, in the case of the
Closing Date Quarter, required to be maintained as of the Closing
Date), plus (B) 50% of Consolidated Net Income (with no reduction for
net losses during any period) for the fiscal quarter of the Borrower
ending on such day (including within "Consolidated Net Income" certain
items otherwise excluded, as provided for in the definition of
"Consolidated Net Income")), plus (C) 75% of the Net Proceeds of any
Equity Offering.
(c) CONSOLIDATED INTEREST COVERAGE RATIO. Permit the
Consolidated Interest Coverage Ratio as of the end of each Four-Quarter
Period to be less than 2.75 to 1.00.
10.2 ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition and,
if the Cost of Acquisition is in excess of $25,000,000, the Borrower shall have
furnished to the Administrative Agent (A) pro forma historical financial
statements as of the end of the most recently completed Fiscal Year of the
Borrower and most recent interim fiscal quarter, if applicable giving effect to
such Acquisition and (B) a certificate in the form of EXHIBIT H prepared on a
historical pro forma basis as of the most recent date for which financial
statements have been furnished pursuant to SECTION 8.6(a) or SECTION 9.1(a) OR
(b) giving effect to such Acquisition, which certificate shall demonstrate that
no Default or Event of Default would exist immediately after giving effect
thereto, (iii) the Person acquired shall be a wholly-owned Subsidiary, or be
merged into the Borrower or a wholly-owned Subsidiary, immediately upon
consummation of the Acquisition (or if assets are being acquired, the acquiror
shall be the
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Borrower or a wholly-owned Subsidiary), and (iv) if the Cost of Acquisition
shall exceed $50,000,000, the Required Lenders shall consent to such Acquisition
in their discretion.
10.3 CAPITAL EXPENDITURES. Make or become committed to make Capital
Expenditures, excluding Costs of Acquisition, that exceed in the aggregate in
any Fiscal Year $40,000,000 (on a limited cumulative basis, with the effect that
amounts up to $7,500,000 not expended in any Fiscal Year may be carried forward
to the immediately following Fiscal Year).
10.4 LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than
(a) Liens created under the Security Instruments in favor of
the Administrative Agent and the Lenders, and liens otherwise existing
as of the date hereof and as set forth in SCHEDULE 8.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves are being maintained in
accordance with GAAP, which Liens are not yet exercisable to effect the
sale or seizure of property subject thereto;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens arising 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 are being maintained in
accordance with GAAP, which Liens are not yet exercisable to effect the
sale or seizure of property subject thereto;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, surety and appeal bonds,
contracts (other than for the repayment of Indebtedness), statutory
obligations and other similar obligations or arising as a result of
progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which, in the case of the Mortgage Property, do not
materially detract from the value of the property to which they attach
or materially impair the use thereof to the Borrower or any Subsidiary;
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(f) Liens on fixed assets of the Borrower and its Subsidiaries
securing Indebtedness permitted under SECTION 10.5(g), provided the
amount of such Indebtedness so secured does not exceed at any time
$10,000,000, and provided further that, with respect to purchase money
Indebtedness and Capital Leases, the amount of such Indebtedness
represents not less than 75% of the aggregate book value of the fixed
assets securing such Indebtedness and no property other than the assets
purchased secures such Indebtedness;
(g) Subject to SECTION 11.1(i), Liens arising by reason of any
judgment, decree or order of any court, to the extent that such
judgment, decree or order is adequately bonded, or such judgment,
decree or order is covered by insurance as to which the insurance
company has not disclaimed or disputed in writing its obligations for
coverage, or appropriate legal proceedings have been duly initiated for
the review of such judgment, decree or order and such proceedings have
not been formally terminated, or the period within which such
proceedings may be initiated has not expired; or
(h) Liens securing refinancing, extensions or renewals of
Indebtedness or obligations secured by Liens permitted in clauses (a)
through (f) above; provided that (x) the amount of any such extended,
renewed or refinancing Indebtedness or obligation is not increased, (y)
such extended, renewed or refinancing Indebtedness or obligation is on
terms and conditions no more restrictive than the terms and conditions
of the Indebtedness or obligations being extended or renewed and (z)
such Liens cover only property or assets theretofore subject thereto
(and for purposes of this clause (i) "refinancing" Indebtedness shall
have the meaning provided in SECTION 10.5(a));
10.5 INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in Schedule 8.6 and any refinancing of such Indebtedness; PROVIDED,
that the aggregate principal amount of such refinancing Indebtedness is
not increased and such refinancing is on terms and conditions no more
restrictive than the terms of the Indebtedness being refinanced (and
for purposes hereof, a "refinancing" Indebtedness shall include
Indebtedness incurred within 90 days after the refinanced Indebtedness
is repaid);
(b) Indebtedness owing to the Administrative 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;
(d) Indebtedness arising from Rate Hedging Obligations
permitted under SECTION 10.16;
(e) Guaranties of the Borrower or any Guarantor in respect of
Indebtedness otherwise permitted to be incurred under this SECTION
10.5;
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(f) Subordinated Debt in an amount not exceeding $35,000,000
at any time; and
(g) additional Indebtedness not otherwise covered by clauses
(a) through (f) above, provided that the aggregate outstanding
principal amount of all such other Indebtedness permitted under this
clause (g) shall in no event exceed $25,000,000 at any time.
10.6 TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
any assets of Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of property that
is substantially worn, obsolete, damaged or, in the judgment of the Borrower, no
longer best used or useful in its business or that of any Subsidiary (including
up to $7,500,000 identified by Borrower as assets for sale on its consolidated
balance sheet as of June 30, 2000), (c) transfers of assets necessary to give
effect to merger or consolidation transactions permitted by SECTION 10.8, (d)
the disposition of Eligible Securities in the ordinary course of management of
the investment portfolio of the Borrower and its Subsidiaries, (e) sales and
other transfers of assets from the Borrower to a Guarantor and vice versa, (f)
the sale or other disposition of all or any substantial part of the Atlas
division of the Borrower, (g) the sale or other disposition of assets up to
$10,000,000 in any Fiscal Year to the extent that the net proceeds thereof are
reinvested in the business of the Borrower or any Guarantor within twelve months
thereafter, and (h) other dispositions in any one Fiscal Year at fair market
value of assets that do not constitute Collateral having a book or market value
(whichever is higher) not exceeding $5,000,000.
10.7 INVESTMENTS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in SCHEDULE 8.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(e) investments in Subsidiaries which are Guarantors;
(f) other loans, advances and investments made in the ordinary
course of business in an aggregate principal amount at any time
outstanding not to exceed $5,000,000;
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(g) loans to officers, directors and employees of the Borrower
or any Subsidiary not exceeding in an aggregate principal amount at any
time outstanding not to exceed $1,000,000;
(h) promissory notes received as a result of a sale or other
disposition of an asset permitted under SECTION 10.6; and
(i) additional Investments not otherwise covered by clauses
(a) through (h) above, provided that the aggregate amount of such
Investments permitted under this clause (i) shall not exceed ten
percent (10%) of Consolidated Net Worth at any time.
10.8 MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of all or a substantial part of its
assets (other than sales or other dispositions permitted under SECTION 10.6);
provided, however, (i) any Subsidiary of the Borrower may merge or transfer all
or substantially all of its assets into or consolidate with the Borrower or any
wholly-owned Subsidiary of the Borrower, (ii) the Borrower may merge FLS into
the Borrower, and (iii) any other Person may merge into or consolidate with the
Borrower or any wholly-owned Subsidiary and any Subsidiary may merge into or
consolidate with any other Person in order to consummate an Acquisition
permitted by SECTION 10.2, provided further, that any resulting or surviving
entity shall execute and deliver such agreements and other documents, including
a Facility Guaranty, and take such other action as the Administrative Agent may
require to evidence or confirm its express assumption of the obligations and
liabilities of its predecessor entities under the Loan Documents.
10.9 RESTRICTED PAYMENTS. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
provided, however, the Borrower may make the following Restricted Payments in
any Fiscal Year (on a non-cumulative basis, with the effect that amounts not
paid in any Fiscal Year may not be carried over for payment in a subsequent
period) if immediately prior to and immediately after giving effect thereto no
Default or Event of Default shall exist or occur and be continuing:
(a) cash payments or dividends to or on behalf of FLS or
Gerdau, S.A. for (i) reimbursement of tax obligations not otherwise
paid by the Borrower, and (ii) holding company expenses not to exceed
$100,000;
(b) sales and other transfers of assets from the Borrower or a
Guarantor to the Borrower or a Guarantor;
(c) the purchase of shares of Voting Securities of the
Borrower owned by employees of the Borrower the purchase price of which
shall not exceed in any Fiscal Year an aggregate of $1,000,000; and
(d) other Restricted Payments not otherwise covered by clauses
(a), (b) and (c) above made after the Closing Date which during the
term of this Agreement do not exceed the sum of (i) fifty percent (50%)
of the Consolidated Net Income during the
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period (taken as one accounting period) from the first day of the
Borrower's fiscal quarter ending on June 30, 2000 to the last day of
the Borrower's most recently ended fiscal quarter for which internal
financial statements are available at the time of such proposed
Restricted Payment (or, if such aggregate Consolidated Net Income is a
loss, minus 100% of such amount); (ii) twenty-five percent (25%) of the
aggregate Net Proceeds received by the Borrower after the Closing Date
from any Equity Offering other than an Equity Offering to an Affiliate,
including Gerdau, S.A. and its subsidiaries, in which event the amount
shall be fifty percent (50%); and (iii) $25,000,000.
10.10 TRANSACTIONS WITH AFFILIATES. Other than transactions permitted
under Sections 10.7, 10.8 and 10.9, enter into any transaction after the Closing
Date, including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Borrower or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Borrower or
such Subsidiary and (c) that the Borrower may purchase, sell, exchange or lease
property to or from an Affiliate upon fair and reasonable terms no less
favorable to the Borrower (or any Subsidiary) than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate.
10.11 COMPLIANCE WITH ERISA, THE CODE AND FOREIGN BENEFIT LAWS. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority exceeding
$1,000,000; or
(b) except to the extent permitted under ERISA, permit the
present value of all benefit liabilities under all Pension Plans to
exceed the current value of the assets of such Pension Plans allocable
to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code is
reasonably likely to be imposed exceeding in the aggregate $1,000,000
for which a statutory or class exemption is not available or a private
exemption has not been obtained; or
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(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
material additional liability to the Borrower or any ERISA Affiliate or
materially increase the obligation of the Borrower or any ERISA
Affiliate to a Multiemployer Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
10.12 FISCAL YEAR. Change its Fiscal Year.
10.13 DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 10.8.
10.14 LIMITATIONS ON SALES AND LEASEBACKS. Enter into any arrangement
or arrangements with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property, whether now owned or hereafter acquired
in a single transaction or series of related transactions, which has been or is
to be sold or transferred by the Borrower or any Subsidiary 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 Borrower or any
Subsidiary if after giving effect thereto, the aggregate outstanding amount of
all such transactions then in effect would exceed $25,000,000.
10.15 CHANGE IN CONTROL. Cause, suffer or permit to exist or occur any
Change of Control.
10.16 RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except pursuant to Swap Agreements in an aggregate notional
amount not to exceed at any time the sum of (a) 25% of the Total Revolving
Credit Commitment and (b) 100% of the Term Loan Commitment.
10.17 NEGATIVE PLEDGE CLAUSES. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Administrative Agent and the
Lenders pursuant to this Agreement or any other Loan Documents which prohibits
or limits the ability of any of the Borrower or any Subsidiary to create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, provided that the Borrower and any
Subsidiary may enter into such an agreement in connection with, and that applies
only to, property acquired with the proceeds of purchase money Indebtedness
permitted hereunder and Capital Leases to the extent permitted hereunder, when
such prohibition or limitation is by its terms effective only against the assets
subject to such Lien.
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10.18 PREPAYMENTS, ETC. OF INDEBTEDNESS.
(a) Other than the refinancing or restructuring permitted
under SECTION 10.5, prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make
any payment in violation of any subordination terms of, any
Indebtedness subordinate to the Obligations; or
(b) amend, modify or change in any manner any term or
condition of any Indebtedness described in SECTION 10.5(a) so that the
terms and conditions thereof are less favorable to the Administrative
Agent and the Lenders than the terms of such Indebtedness as of the
Closing Date.
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ARTICLE XI
Events of Default and Acceleration
11.1 EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of ARTICLE II or ARTICLE III or ARTICLE IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Administrative Agent on the date within three (3)
Business Days on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in SECTION 9.7, 9.11, 9.19 or ARTICLE X;
(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) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the
Administrative Agent or an officer of the Borrower becomes aware of
such default, or if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in any of the other Loan Documents (beyond any
applicable grace period, if any, contained therein) or in any
instrument or document evidencing or creating any obligation, guaranty
or Lien in favor of the Collateral Agent, the Administrative Agent or
any of the Lenders or delivered to the Collateral Agent, the
Administrative 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 Agents), or if without the written consent of 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 Agents); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness [or Rate Hedging Obligation (other than the
Loans and other Obligations) of the Borrower or any Subsidiary in an
amount or Rate Hedge Value, as applicable, not less than
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$1,000,000 in the aggregate outstanding, or (ii) a default, which is
not waived, in the performance, observance or fulfillment of any term
or covenant contained in any agreement or instrument under or pursuant
to which any such Indebtedness may have been issued, created, assumed,
guaranteed or secured by the Borrower or any Subsidiary, or (iii) with
respect to any such Rate Hedging Obligation, any termination event
shall occur as to which the Borrower or any Subsidiary is the "affected
party" under the agreement or instrument governing such Rate Hedging
Obligation, or (iv) any other event of default as specified in any
agreement or instrument under or pursuant to which any such
Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any Subsidiary, and such default or event of
default or termination shall continue for more than the period of
grace, if any, therein specified, or such default or event of default
or termination shall permit the holder of any such Indebtedness (or any
agent or trustee acting on behalf of one or more holders) to accelerate
the maturity of any such Indebtedness or terminate any agreement or
instrument governing any such Rate Hedging Obligation; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Administrative Agent or any
Lender by or on behalf of the Borrower or any other Credit Party
pursuant to or in connection with any Loan Document, or otherwise,
shall be false or misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary or other Credit Party
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary or other Credit Party seeking liquidation,
reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state, which petition is not dismissed within
sixty (60) days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there
is commenced against the Borrower or any Subsidiary or other Credit
Party any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the
85
Borrower or any Subsidiary or other Credit Party takes any action to
indicate its consent to or approval of any such proceeding or petition;
or
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $1,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $1,000,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days; or
(k) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
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 Administrative Agent may, and at the direction
of the Required Lenders shall, declare any obligation of the
Lenders and the Issuing Banks to make further Revolving Loans
and Swing Line Loans or to issue additional Letters of Credit
terminated, whereupon the obligation of each Lender to make
further Revolving Loans, of Bank of America to make further
Swing Line Loans, and of the Issuing Banks to issue additional
Letters of Credit, hereunder shall terminate immediately, and
(ii) the Administrative Agent shall at the direction of the
Required Lenders, at their option, declare by notice to the
Borrower any or all of the Obligations to be immediately due
and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrower to the
Administrative 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, of Bank of America to make Swing Line Loans,
and of the Issuing Banks to issue Letters of Credit hereunder
shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the
necessity of any action by the Administrative Agent or the
Required Lenders or notice to the Administrative Agent or the
Lenders;
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(B) the Borrower shall, upon demand of the
Administrative Agent or the Required Lenders, deposit cash
with the Administrative 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
Administrative Agent pursuant to the terms of the LC Account
Agreement; and
(C) the Agents and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
11.2 AGENTS TO ACT. In case any one or more Events of Default shall
occur and not have been waived, subject to the provisions of Article XII, the
Agents may, and at the direction of the Required Lenders shall, proceed to
protect and enforce their rights and remedies contained herein or in any other
Loan Document, or as may be otherwise available at law or in equity.
11.3 CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agents 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.
11.4 NO WAIVER. No course of dealing between the Borrower and any
Lender or the Agents or any failure or delay on the part of any Lender or the
Agents in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
11.5 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 Administrative Agent hereunder,
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Borrower hereunder, shall be applied by the
Administrative Agent in the following order:
(a) the reasonable expenses incurred in connection with
retaking, holding, preserving, processing, maintaining or preparing for
sale, lease or other disposition of, any Collateral, including
reasonable attorney's fees and legal expenses pertaining thereto;
(b) amounts due to the Lenders and the Issuing Banks pursuant
to SECTIONS 4.6(a), 4.6(b), 4.6(c), 4.6(d) AND 13.5;
(c) amounts due to the Administrative Agent pursuant to
SECTION 4.6(e);
(d) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in
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respect of Swing Line Outstandings being included in such calculation
and paid to Bank of America);
(e) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to Bank of America);
(f) payments of cash amounts to the Administrative Agent in
respect of outstanding Letters of Credit pursuant to SECTION 11.1(B);
(g) amounts due to the Issuing Banks, the Agents, the Lenders
and others pursuant to SECTIONS 3.2(h), 9.15 AND 13.9;
(h) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
recipients, including amounts due to any of the Lenders or their
affiliates in respect of Obligations consisting of liabilities under
any Swap Agreement with any of the Lenders or their affiliates on a pro
rata basis according to the amounts owed; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XII
The Agents
12.1 APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its
administrative agent under this Agreement and the other Loan Documents with such
powers and discretion as are specifically delegated to the Administrative Agent
by the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. Each Lender hereby
irrevocably appoints and authorizes the Collateral Agent or the Administrative
Agent (in the case of the Mortgage) to act as its collateral agent under the
Security Instruments (other than the Mortgage) with such powers and discretion
as are specifically delegated to the Collateral Agent or Administrative Agent by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. The Administrative Agent and
the Collateral Agent (which terms as used in this sentence and in SECTION 12.5
and the first sentence of SECTION 12.6 hereof shall include the Administrative
Agent's and the Collateral Agent's affiliates and their own and their
affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agents may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by them with reasonable care. The term
"Administrative Agent" and "Collateral Agent" as used in the Loan
Documents shall not connote any fiduciary or other implied obligation
under applicable law, and is used solely as a matter of market custom
to connote an administrative relationship between independent
contracting parties.
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12.2 RELIANCE BY AGENTS. Each of the Agents shall be entitled to rely,
and shall be fully protected in relying, upon any certification, notice,
instrument, writing, or other communication (including, without limitation, any
thereof by telephone or telefacsimile) believed by it to be genuine and correct
and to have been signed, sent or made by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel for
any Credit Party), independent accountants, and other experts selected by such
Agent. The Administrative Agent may deem and treat the payee of any Note as the
holder thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts an Assignment and Acceptance executed in accordance with
SECTION 13.1 hereof. As to any action not expressly mandated by this Agreement,
the Agents shall not be required to exercise any discretion or take any action,
but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the
Required Lenders, and such instructions shall be binding on all of the Lenders;
PROVIDED, HOWEVER, that neither the Administrative Agent nor the Collateral
Agent shall be required to take any action unless 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 any such action.
12.3 DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
the Administrative Agent has received written notice from a Lender or the
Borrower specifying such Default or Event of Default and stating that such
notice is a "Notice of Default." In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The Agents
shall (subject to SECTION 12.2 hereof) take such action with respect to such
Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agents shall have received such
directions, the Agents may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as the Agents shall deem advisable in the best interest of the Lenders.
12.4 RIGHTS AS LENDER. With respect to its Revolving Credit Commitment
and Term Loan Commitment and the Loans made by it and Letters of Credit issued
by it, each Agent (and any successor acting as Administrative Agent or
Collateral Agent) in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent or Collateral Agent, as
the case may be, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Administrative Agent and the Collateral Agent
in their respective individual capacities. Each of the Agents (and any successor
acting as Administrative Agent or Collateral Agent) and its affiliates may
(without having to account therefor to any Lender) accept deposits from, lend
money to, make investments in, provide services to, and generally engage in any
kind of lending, trust, or other business with any Credit Party or any of its
Subsidiaries or affiliates as if it were not acting as Administrative Agent or
Collateral Agent, and Bank of America (and any successor acting as
Administrative Agent) and its affiliates may accept fees and other consideration
from any Credit Party or any of its Subsidiaries or affiliates for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders.
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12.5 INDEMNIFICATION. The Lenders agree to indemnify the Agents and
each of their respective Affiliates, and their respective officers, employees
and agents (each, an "Agent Indemnitee") (to the extent not reimbursed under
SECTION 13.9 hereof, but without limiting the obligations of the Borrower under
such Section) ratably in accordance with their respective Revolving Credit
Commitments and Term Loan Commitments, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including attorneys' fees), or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against any Agent Indemnitee
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by any Agent Indemnitee under any Loan Document; provided that no Lender shall
be liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified; provided
further, however, that no action or omission taken or occurring at the written
direction of the Required Lenders or all Lenders, as the case may be, shall
constitute either gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse each Agent promptly upon demand
for its ratable share of any costs or expenses payable by the Borrower under
SECTION 13.5, to the extent that such Agent is not promptly reimbursed for such
costs and expenses by the Borrower. The agreements contained in this SECTION
12.5 shall survive payment in full of the Loans and all other amounts payable
under this Agreement.
12.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agents or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Credit Parties and their Subsidiaries and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Agents or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under the
Loan Documents. Except for notices, reports, and other documents and information
expressly required to be furnished to the Lenders by the Agents hereunder, the
Agents 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 any Credit Party or any of its Subsidiaries or affiliates that may
come into the possession of the Agents or any of their affiliates.
12.7 RESIGNATION OF AGENT. The Administrative Agent or the Collateral
Agent may resign at any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent or the Collateral Agent, as the case
may be, with the consent of the Borrower (provided that there is not then a
Default or Event of Default), which consent will not be unreasonably withheld.
If no successor Administrative Agent or the Collateral Agent, as the case may
be, shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Administrative
Agent's or Collateral Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent or
Collateral Agent, as the case may be, which shall be a commercial bank organized
under the laws of the United States of America having combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent or Collateral Agent, as the case may be, hereunder by a
successor, such successor shall thereupon
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succeed to and become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Administrative Agent or Collateral Agent,
as the case may be, and the retiring Administrative Agent or Collateral Agent,
as the case may be, shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's or Collateral Agent's
resignation hereunder as Administrative Agent or Collateral Agent, as the case
may be, the provisions of this Article XII shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent or Collateral Agent, as the case may be.
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ARTICLE XIII
Miscellaneous
13.1 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Loans, its
Notes, its Revolving Credit Commitment and its Term Loan Commitment);
provided, however, that
(i) each such assignment shall be to an
Eligible Assignee;
(ii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, any such partial
assignment shall be in an amount at least equal to $5,000,000
or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall
be of a constant, and not varying, percentage of all of its
rights and obligations under this Agreement and the Notes
(except that any assignment by an Issuing Bank shall not
include its rights, benefits or duties as an Issuing Bank and
any assignment by Bank of America as the provider of Swing
Line Loans shall not include its rights, benefits and duties
as provider of Swing Line Loans); and
(iv) the parties to such assignment shall
execute and deliver to the Administrative Agent for its
acceptance an Assignment and Acceptance in the form of EXHIBIT
B hereto, together with any Note subject to such assignment
and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, the Administrative
Agent and the Borrower shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of Taxes in accordance with SECTION 6.6.
(b) The Administrative Agent shall maintain at its address
referred to in SECTION 13.2 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Revolving Credit
Commitments and Term Loan Commitments of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register"). The
entries in
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the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT B hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or Term Loan Commitment or its Loans);
provided, however, 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) the participant shall be entitled to the benefit of
the yield protection provisions contained in ARTICLE VI and the right
of set-off contained in SECTION 13.3, and (iv) the Borrower shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of
the Borrower relating to its Loans and its Note and to approve any
amendment, modification, or waiver of any provision of this Agreement
(other than amendments, modifications, or waivers decreasing the amount
of principal of or the rate at which interest is payable on such Loans
or Note, extending any scheduled principal payment date or date fixed
for the payment of interest on such Loans or Note, or extending its
Revolving Credit Commitment or Term Loan Commitments).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in the
Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Administrative Agent, the Lenders, or any of
them. The Borrower may not assign or otherwise transfer to any other
Person any right, power,
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benefit, or privilege (or any interest therein) conferred hereunder or
under any of the other Loan Documents, or delegate (by assumption or
otherwise) to any other Person any duty, obligation, or liability
arising hereunder or under any of the other Loan Documents, and any
such purported assignment, delegation or other transfer shall be void.
13.2 NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
AmeriSteel Corporation
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(b) if to the Administrative Agent:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Corporate Finance
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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(c) if to the Collateral Agent:
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(e) if to any other Credit Party, at the address set forth on
the signature page of the Facility Guaranty or Security Instrument
executed by such Credit Party, as the case may be.
13.3 RIGHT OF SET-OFF; ADJUSTMENTS.
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its
affiliates) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under
this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this
Section 13.3 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or
interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted
Lender or is repaid in whole or in party by such benefitted Lender in
good faith settlement of a pending or threatened avoidance claim, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery or settlement payment, but
without interest. The Borrower agrees
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that any Lender so purchasing a participation from a Lender pursuant to
this Section 13.3 may, to the fullest extent permitted by law, exercise
all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Person were the
direct creditor of the Borrower in the amount of such participation.
13.4 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit 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
Revolving Credit Commitment or Term Loan Commitment hereunder or the Borrower
has continuing obligations hereunder unless otherwise provided herein.
13.5 EXPENSES. The Borrower agrees to pay on demand all costs and
expenses of the Agents in connection with the syndication, preparation,
execution, delivery, administration, modification, and amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agents (including the cost of internal counsel) with respect
thereto and with respect to advising the Agents as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agents and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses but excluding the
cost of internal counsel), in connection with the restructuring, workout or
enforcement (whether through negotiations, legal proceedings, or otherwise) of
the Loan Documents and the other documents to be delivered hereunder.
13.6 AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than the Credit Agreement) the Administrative Agent on behalf of
the Required Lenders (and, if ARTICLE XII or the rights or duties of the
Administrative Agent are affected thereby, by the Administrative Agent);
provided that no such amendment or waiver shall, unless signed by all the
Lenders, (i) increase the Revolving Credit Commitments or Term Loan Commitments
of the Lenders, the Total Revolving Credit Commitment or the Total Term Loan
Commitment, (ii) reduce the principal of or rate of interest on any Loan or any
fees or other amounts payable hereunder, (iii) postpone any date fixed for the
payment of any scheduled installment of principal of or interest on any Loan or
any fees or other amounts payable, hereunder or for termination of any Revolving
Credit Commitment or Term Loan Commitment, (iv) change the percentage of the
Revolving Credit Commitment or Term Loan Commitment or of the unpaid principal
amount of the Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to (x) take any action under this SECTION 13.6 or any
other provision of this Agreement or (y) amend this SECTION 13.6, (v) release
any Guarantor or, other than in connection with a transaction permitted under
SECTION 10.6, all or a material part of the Collateral or (vi) change any
provision of this Agreement or the other Loan Documents relating to the pro rata
treatment of Lenders; and provided, further, that no such amendment or waiver
that affects the rights, privileges or obligations of Bank of America as
provider of Swing Line Loans, shall be effective unless signed in writing by
Bank of
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America or that affects the rights, privileges or obligations of the Issuing
Banks as issuers of Letters of Credit, shall be effective unless signed in
writing by the Issuing Banks.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Administrative 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.
13.7 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such fully-executed
counterpart. Signatures on communications and other documents may be transmitted
by facsimile only with the consent of the Administrative Agent in its sole and
absolute discretion in each instance. The effectiveness of any such signatures
accepted by the Administrative Agent shall, subject to applicable law, have the
same force and effect as manual signatures and shall be binding on all parties.
The Administrative Agent may also require that any such signature be confirmed
by a manually-signed hardcopy thereof. Each party hereto hereby adopts as an
original executed signature page each signature page hereafter furnished by such
party to the Administrative Agent (or an agent of the Administrative Agent)
bearing (with the consent of the Administrative Agent) a facsimile signature by
or on behalf of such party. Nothing contained in this Section shall limit the
provisions of SECTION 12.2.
13.8 TERMINATION. This Agreement shall terminate on the Facility
Termination Date, except that (x) those provisions which by the express terms
thereof continue in effect notwithstanding the Facility Termination Date, and
(y) obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable, shall continue in effect. Notwithstanding
the foregoing, if after receipt of any payment of all or any part of the
Obligations, the Collateral Agent, the Administrative Agent, the Issuing Banks
or any Lender (including the Swing Line Lender) is for any reason compelled to
surrender such payment to any Person because such payment is determined to be
void or voidable as a preference, impermissible setoff, a diversion of trust
funds or for any other reason or elects to repay any such amount in good faith
settlement of a pending or threatened avoidance claim, (i) this Agreement
including the provisions pertaining to Participations in Letters of Credit,
Reimbursement Obligations, and Swing Line Loans) shall continue in full force
and the Borrower shall be liable to, and shall indemnify and hold the
Administrative Agent or such Lender harmless for, the amount of such payment
surrendered until the Administrative Agent or such Lender shall have been
finally and irrevocably paid in full, and (ii) in the event any portion of any
amount so required to be surrendered by the Administrative Agent, the Collateral
Agent or the Issuing Banks or the Swing Line Lender shall have been distributed
to the Lenders, the Lenders shall promptly repay such amounts to the
Administrative Agent, the Collateral Agent or the Issuing Banks or the Swing
Line Lender on demand therefor. The provisions of the foregoing sentence shall
be and remain effective notwithstanding any contrary action which may have been
taken by the Administrative Agent, the Collateral Agent, the Issuing Banks or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Administrative Agent's, the Collateral
Agent's, the Issuing Banks' or the Lenders' rights under
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this Agreement and shall be deemed to have been conditioned upon such payment
having become final and irrevocable.
13.9 INDEMNIFICATION; LIMITATION OF LIABILITY.
(a) The Borrower agrees to indemnify and hold harmless the
Agents and each Lender and each of their affiliates and their
respective officers, directors, employees, agents, and advisors (each,
an "Indemnified Party") from and against any and all claims, damages,
losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the Loan
Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such
claim, damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this SECTION 13.9 applies, such
indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors,
shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. The Borrower
agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it, any of its
Subsidiaries, any Guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the
transactions contemplated herein, except to the extent that such
liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified
Party's gross negligence or willful misconduct. The Borrower agrees not
to assert any claim against the Agents, any Lender, any of their
affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for
special, indirect, consequential, or punitive damages arising out of or
otherwise relating to the Loan Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of
the Loans.
(b) The agreements and obligations of the Borrower contained
in this SECTION 13.9 shall continue in effect notwithstanding the
Facility Termination Date.
13.10 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
13.11 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and
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supersedes all previous proposals, negotiations, representations, commitments
and other communications between or among the parties, both oral and written,
with respect thereto (except that those provisions (if any) which by the express
terms of the commitment letter dated as of July 21, 2000, executed by Bank of
America and BAS and accepted by the Borrower, survive the closing of the
Revolving Credit Facility, Letter of Credit Facility and Term Loan Facility,
shall survive and continue in effect).
13.12 AGREEMENT CONTROLS. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
13.13 USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Administrative 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 Borrower 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 cancelled 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 Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to 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.
13.14 PAYMENTS. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Administrative Agent at the Principal Office in Dollars and in
immediately available funds, without setoff, recoupment, deduction or
counterclaim. Subject to the definition of "Interest Period" herein, whenever
any payment under this Agreement or any other Loan Document shall be stated to
be due on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time in such case shall be
included in the computation of interest and fees, as applicable, and as the case
may be.
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13.15 GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(b) THE 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
HILLSBOROUGH, STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 13.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR ANY LENDER
FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE
BORROWER OR ANY OF THE BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR
LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH
JURISDICTION, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY
SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS
WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
101
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS HEREBY
AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION,
SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY
AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH
ACTION, SUIT OR PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS OF SECTION 13.15(b) IS AN INCONVENIENT FORUM.
[Signatures on following pages]
102
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.
AMERISTEEL CORPORATION
WITNESS:
/s/ XXXXXX XXXXXXXXXX By: /s/ XXX X. XXXXX
------------------------------------ -------------------------------------
Name: Xxx X. Xxxxx
/s/ XXXXX X. XXXXXXX Title: Chief Financial Officer
------------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
Signature Page 1 of 15
BANK OF AMERICA, N.A.
By: /s/ XXXXXX XXXXXX
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
Lending Office for Base Rate Loans:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.:
Reference: AmeriSteel Corporation
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.:
Reference: AmeriSteel Corporation
Attention: Agency Services
Signature Page 2 of 15
SUNTRUST BANK, as Syndication Agent
and as a Lender
By: /s/ W. XXXXX XXXXXX
-----------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
Lending Office:
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SunTrust Bank
Orlando, Florida
ABA #000000000
Account #9215004320
Account Name: CCSC
Reference: AmeriSteel Corporation
Signature Page 3 of 15
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Lending Office:
One PNC Plaza, 3rd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Wire Transfer Instructions:
PNC Bank, N.A.
Pittsburgh, Pennsylvania
ABA #000-000-000
Account #196030010890
Attention: Commercial Loans Department
Reference: AmeriSteel Corporation
Signature Page 4 of 15
AMSOUTH BANK, an Alabama banking corporation
By: /s/ XXXXXX X. XXXXX
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Lending Office:
000 X. Xxxxx Xxxxxx, Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
AmSouth Bank
Birmingham, Alabama
ABA #000000000
Account #001102450504400
Account Name: Florida Clearing House Account
Attention: Xxxxxx XxXxx, Commercial Banking
(000) 000-0000
Reference: AmeriSteel Corporation
Signature Page 5 of 15
BANQUE SUDAMERIS, MIAMI AGENCY
By: /s/ XXXXXX DE XX XXXX
--------------------------------------
Name: Xxxxxx de xx Xxxx
Title: Senior Vice President & Manager
By: /s/ XXXXXX XXXXX
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
Lending Office:
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Banque Sudameris, Miami Agency
Miami, Florida
ABA #000000000
Attention: Xxxxxx X. Xxxxx/Xxxxxxxxx Xxxx
Reference: AmeriSteel Corporation
Signature Page 6 of 15
SOUTHTRUST BANK
By: /s/ XXXXXX XXXXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
Lending Office:
Xxx Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
SouthTrust Bank
Birmingham, Alabama
ABA #000000000
Account #131009
Attention: Xxxxxx Xxxxxxxx (727-825-2733)
Reference: AmeriSteel Corporation
Signature Page 7 of 15
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as Collateral Agent
and as a Lender
By: /s/ S. TOBARI
---------------------------------
Name: Shichito Tobari
Title: Vice President
Lending Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Wire Transfer Instructions:
The Bank of Tokyo-Mitsubishi, Ltd.
New York, New York
ABA #0000-0000-0
Account# 00000000
Attention: Xxxxxxx LOD
Reference: AmeriSteel Corporation
Signature Page 8 of 15
COMERICA BANK
By: /s/ XXX X. XXXXXXX
-------------------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
Lending Office:
000 Xxxxxxxx Xxxxxx
International Department, 23rd Floor - MC3330
Xxxxxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
Comerica Bank
Detroit, Michigan
ABA #0720 0009 6
Account #00-00000-00000
Attention: Commercial Loan Accounting
Reference: AmeriSteel Corporation
Signature Page 9 of 15
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Lending Office:
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Wire Transfer Instructions:
LaSalle Bank N.A.
Chicago, Illinois
ABA #000-000-000
Account #0000000
Account Name: Commercial Loans
Reference: AmeriSteel Corporation
Signature Page 10 of 15
THE CHASE MANHATTAN BANK
By: /s/ XXXXXX XXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Lending Office:
4 Chase Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Wire Transfer Instructions:
The Chase Manhattan Bank
New York, New York
ABA #021 0000 21
Account #544-703660
Account Name: Chase - Nassau
Attention: Xxxx X. Xxxxxxxx
Reference: AmeriSteel Corporation
Signature Page 11 of 15
REPUBLIC BANK
By: /s/ XXXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
Lending Office:
000 Xxxxxx Xxxxxx, X.X.
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Republic Bank
St. Petersburg, Florida
ABA #000000000
Account #4000094617
Account Name: AmeriSteel Corporation
Attention: Loan Accounting
Signature Page 12 of 15
XXXXXXX XXXXX BANK, FSB
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Lending Office:
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Xxxxxxx Xxxxx Bank, FSB
FHLB Atlanta, Georgia
ABA #0000-0000-0
Account #0000000
Account Name: Xxxxxxx Xxxxx Bank, FSB
Attention: Commercial Loan Operations
Reference: AmeriSteel Corporation
Signature Page 13 of 15
PROVIDENT BANK OF FLORIDA
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Lending Office:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
Provident Bank of Ohio
Cincinnati, Ohio
ABA #000000000
Account #0000000
Account Name: AmeriSteel Corporation
Attention: Xxxxxx Xxxxxx
Signature Page 14 of 15
THE INTERNATIONAL BANK OF MIAMI, N.A.
By: /s/ XXXXXXX XXXXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
Lending Office:
000 Xxxxxxxx Xxx Xxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Wire Transfer Instructions:
The International Bank of Miami, N.A.
Miami, Florida
ABA #000000000
Account Name: Loan Servicing
Attention: Loan Servicing Department
Reference: AmeriSteel Corporation
Signature Page 15 of 15
EXHIBIT A
Applicable Commitment Percentages
REVOLVING APPLICABLE
CREDIT TERM LOAN COMMITMENT
LENDER COMMITMENT COMMITMENT PERCENTAGE
------ ----------------- ----------------- -----------------
Bank of America, N.A $ 29,210,526.34 $ 15,789,473.68 15.00000000%
SunTrust Bank $ 24,342,105.26 $ 13,157,894.74 13.00000000%
PNC Bank, National Association $ 22,719,298.25 $ 12,280,701.75 12.00000000%
AmSouth Bank $ 16,228,070.18 $ 8,771,929.82 8.77192982%
Banque Sudameris, Miami Agency $ 16,228,070.18 $ 8,771,929.82 8.77192982%
SouthTrust Bank $ 16,228,070.18 $ 8,771,929.82 8.00000000%
The Bank of Tokyo-Mitsubishi,
Ltd., New York Branch $ 12,982,456.14 $ 7,017,543.86 7.00000000%
Comerica Bank $ 9,736,842.11 $ 5,263,157.89 5.00000000%
LaSalle Bank National
Association $ 9,736,842.11 $ 5,263,157.89 5.26315789%
The Chase Manhattan Bank $ 9,736,842.11 $ 5,263,157.89 5.00000000%
Republic Bank $ 6,491,228.07 $ 3,508,771.93 3.50877193%
Xxxxxxx Xxxxx Bank, FSB $ 4,868,421.05 $ 2,631,578.95 2.63157895%
Provident Bank of Florida $ 3,245,614.04 $ 1,754,385.96 1.75438596%
The International Bank of Miami,
N.A $ 3,245,614.04 $ 1,754,385.96 1.75438596%
----------------- ----------------- -----------------
$ 185,000,000.00 $ 100,000,000.00 100%
================= ================= =================
A-1
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Second Amended and Restated Credit Agreement
dated as of September 13, 2000 (the "Credit Agreement") among AmeriSteel
Corporation, a Florida corporation (the "Borrower"), the Lenders (as defined in
the Credit Agreement) and Bank of America, N.A., as agent for the Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on SCHEDULE 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on SCHEDULE 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and Term Loan Commitment and the amount of the Loans owing to the
Assignee will be as set forth on SCHEDULE 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Notes held by the Assignor and requests that the
Administrative Agent exchange such Notes for new Notes payable to the order of
the Assignee in an amount equal to the Revolving Credit Commitment and Term Loan
Commitment assumed by the Assignee pursuant hereto and to the Assignor in an
amount equal to the Revolving Credit Commitment and Term Loan Commitment
retained by the Assignor, if any, as specified on SCHEDULE 1.*
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
SECTION 9.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor 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 the Credit Agreement; (iii) confirms
--------------------------
* In the case of any Issuing Bank as Assignor excluding any rights, benefits or
duties as Issuing Bank and in the case of Bank of America as Assignor, excluding
any rights, benefits or duties as provider of Swing Line Loans.
B-1
that it is an Eligible Assignee; (iv) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under SECTION 6.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Administrative
Agent, unless otherwise specified on SCHEDULE 1.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Florida.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of SCHEDULE 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
Schedule 1
Revolving Credit Term Loan
Facility Facility
Percentage interest assigned: _____% _____%
Assignee's Commitment: $__________________ $_________________
Aggregate outstanding principal amount $__________________ $_________________
of Loans assigned:
Principal amount of Note payable to $__________________ $_________________
Assignee:
Principal amount of Note payable to
Assignor: $__________________ $_________________
Effective Date (if other than date of
acceptance by Administrative Agent): $______________,___ $_____________,___
[NAME OF ASSIGNOR], as Assignor
By: ____________________________
Title:
Dated: __________, ____
[NAME OF ASSIGNEE], as Assignee
By: ____________________________
Title:
Domestic Lending Office:
Eurodollar Lending Office:
B-3
----------------------------
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Administrative Agent.
Accepted [and Approved] **
this ___ day of ___________, ____
BANK OF AMERICA, N.A., as Administrative Agent
By:_____________________________
Title:
[Approved this ____ day
of ____________, ____
AMERISTEEL CORPORATION
By:_____________________________]**
Title:
-----------------------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee."
B-4
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of September 13, 2000 (the "Agreement") among AmeriSteel
Corporation, a Florida corporation (the "Borrower"), the Lenders (as defined in
the Agreement), Bank of America, N.A., as Administrative Agent for the Lenders
("Administrative Agent") and The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as Collateral Agent. Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
---------------- ------ ------------------
_____________________ ________________ ______________________
_____________________
_____________________
_____________________ ________________ ______________________
_____________________
_____________________
Borrower hereby revokes (effective upon receipt hereof by the Administrative
Agent) the prior appointment of ________________ as an Authorized
Representative.
This the ___ day of __________________, ____.
AMERISTEEL CORPORATION
By: ______________________________
Name: ____________________________
Title: ___________________________
X-0
XXXXXXX X-0
Form of Borrowing Notice
To: Bank of America, N.A.
as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of September 13, 2000 (the "Agreement") among AmeriSteel
Corporation, a Florida corporation (the "Borrower"), the Lenders (as defined in
the Agreement), Bank of America, N.A., as Administrative Agent for the Lenders
("Administrative Agent") and The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as Collateral Agent. Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Administrative Agent that Loans of the type and amount set forth below be
made on the date indicated:
Type of Loan Interest Period(1) Aggregate Amount(2) Date of Loan(3)
(check one)
------------ ------------------ ------------------- ---------------
Revolving Loan
--------------
Base Rate Loan __________________ ___________________ _______________
Eurodollar Rate Loan __________________ ___________________ _______________
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $2,000,000 or if greater an integral multiple of $500,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan.
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [INSERT
TRANSMITTAL INSTRUCTIONS] .
The undersigned hereby certifies that:
1. No Default or Event of Default has occurred and is continuing either
now or after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VIII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are
D-1-1
true and correct as of the date hereof except that the reference to the
financial statements in SECTION 8.6(a) of the Agreement shall be deemed (solely
for the purpose of the representation and warranty contained in such SECTION
8.6(a) but not for the purpose of any cross reference to such SECTION 8.6(a) or
to the financial statements described therein contained in any other provision
of SECTION 8.6 or elsewhere in ARTICLE VIII) to refer to those financial
statements most recently delivered to you pursuant to SECTION 9.1 of the
Agreement (it being understood that any financial statements delivered pursuant
to SECTION 9.1(b) have not been certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
AMERISTEEL CORPORATION
BY:___________________________________
Authorized Representative
DATE:_________________________________
X-0-0
XXXXXXX X-0
Form of Borrowing Notice--Swing Line Loans
To: Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of September 13, 2000 (the "Agreement") among AmeriSteel
Corporation, a Florida corporation (the "Borrower"), the Lenders (as defined in
the Agreement), Bank of America, N.A., as Administrative Agent for the Lenders
("Administrative Agent") and The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as Collateral Agent. Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to Bank of America that a Swing Line Loan of the amount set forth below be made
on the date indicated:
AMOUNT(1) DATE OF LOAN
---------------------- -----------------------
$__________ _________, ____
-----------------------
(1) Must be $100,000 or if greater an integral multiple of $10,000,
unless a Base Rate Refunding Loan.
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as follows:
[insert transmittal instructions]
The undersigned hereby certifies that:
1. No Default or Event of Default has occurred and is continuing either
now or after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in ARTICLE VIII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in SECTION 8.6(a) of the
Agreement shall be deemed (solely for the purpose of the representation and
warranty contained in such SECTION 8.6(a) but not for the purpose of any cross
reference to such SECTION 8.6(a) or to the financial statements described
therein contained in any other provision of SECTION 8.6 or elsewhere in Article
VIII) to refer to those financial statements most recently delivered to you
pursuant to SECTION 9.1 of the Agreement (it being understood that any financial
D-2-1
statements delivered pursuant to SECTION 9.1(b) have not been certified by
independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
AMERISTEEL CORPORATION
BY:_________________________________
Authorized Representative
DATE:_______________________________
D-2-2
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, N.A., as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of September 13, 2000 (the "Agreement") among AmeriSteel
Corporation, a Florida corporation (the "Borrower"), the Lenders (as defined in
the Agreement), Bank of America, N.A., as Administrative Agent for the Lenders
("Administrative Agent") and The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as Collateral Agent. Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Administrative Agent of the following selection of a type of Loan or
Segment and Interest Period:
Type of Loan Interest Period(1) Aggregate Amount(2) Date of Loan(3)
(check one)
------------ ------------------ ------------------- ---------------
REVOLVING LOAN
--------------
Base Rate Loan __________________ ___________________ _______________
Eurodollar Rate Loan __________________ ___________________ _______________
TERM LOAN SEGMENT
-----------------
Base Rate Loan __________________ ___________________ _______________
Eurodollar Rate Loan __________________ ___________________ _______________
----------------
(1) For any Eurodollar Rate Loan or Segment, one, two, three or six months.
(2) Must be $2,000,000 or if greater an integral multiple of $500,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan or
Eurodollar Rate Segment.
AMERISTEEL CORPORATION
BY:_________________________________
Authorized Representative
DATE:_______________________________
E-1
EXHIBIT F-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$______________ _________, ______________
________ __, ____
FOR VALUE RECEIVED, AMERISTEEL CORPORATION, a Florida corporation having its
principal place of business located in Tampa, Florida (the "Borrower"), hereby
promises to pay to the order of _______________________________________________
(the "Lender"), in its individual capacity, at the office of BANK OF AMERICA,
N.A., as administrative agent for the Lenders (the "Administrative Agent"),
located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000 (or at such other
place or places as the Administrative Agent may designate in writing) at the
times set forth in the Second Amended and Restated Credit Agreement dated as of
September 13, 2000 among the Borrower, the financial institutions party thereto
(collectively, the "Lenders"), the Administrative Agent and The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch, as Collateral Agent (the "Agreement" --
all capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of
________________________________ DOLLARS ($__________) or, if less than such
principal amount, the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the Borrower pursuant to the Agreement on the Revolving
Credit Termination Date or such earlier date as may be required pursuant to the
terms of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Articles II and IV of the Agreement. All or any portion of the
principal amount of Loans may be prepaid or required to be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-1-1
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is hereby made for a more complete statement of
the terms and conditions upon which the Revolving Loans evidenced hereby were or
are made and are to be repaid. This Revolving Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
This Revolving Note shall be governed by and construed in accordance
with the laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Revolving Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
THIS REVOLVING NOTE AND OTHER REVOLVING NOTES OF EVEN DATE ARE GIVEN IN
SUBSTITUTION AND NOT PAYMENT OF REVOLVING NOTES OF THE BORROWER DATED JULY 14,
1998 ISSUED PURSUANT TO AN AMENDED AND RESTATED CREDIT AGREEMENT DATED JULY 14,
1998, AS AMENDED.
[SIGNATURE PAGE FOLLOWS.]
F-1-2
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
WITNESS: AMERISTEEL CORPORATION
_______________________________ By:__________________________________
Name:________________________________
_______________________________ Title:_______________________________
F-1-3
EXHIBIT F-2
Form of Term Note
Promissory Note
(Term Loan)
$________________ ________, ________
________ __, ____
FOR VALUE RECEIVED, AMERISTEEL CORPORATION, a Florida corporation
having its principal place of business located in Tampa, Florida (the
"Borrower"), hereby promises to pay to the order of
___________________________________ (the "Lender"), in its individual capacity,
at the office of BANK OF AMERICA, N.A., as administrative agent for the Lenders
(the "Administrative Agent"), located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxx 00000 (or at such other place or places as the Administrative Agent may
designate in writing) at the times set forth in the Second Amended and Restated
Credit Agreement dated as of September 13, 2000 among the Borrower, the
financial institutions party thereto (collectively, the "Lenders"), the
Administrative Agent and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as
Collateral Agent (the "Agreement" -- all capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement), in lawful
money of the United States of America, in immediately available funds, the
principal amount of _____________________ DOLLARS ($__________) on the Term Loan
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Articles II and IV of the Agreement. All or any portion of the
principal amount of Loans may be prepaid or required to be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount hereof and
accrued but unpaid interest thereon evidenced by this Term Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Term Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest due hereunder, all costs of collection, including reasonable
attorneys' fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Term Note is one of the Term Notes referred to in the Agreement
and is issued pursuant to and entitled to the benefits and security of the
Agreement to which reference is
F-2-1
hereby made for a more complete statement of the terms and conditions upon which
the Term Loan evidenced hereby was made and is to be repaid. This Term Note is
subject to certain restrictions on transfer or assignment as provided in the
Agreement.
This Term Note shall be governed by and construed in accordance with
the laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Term Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-2-2
IN WITNESS WHEREOF, the Borrower has caused this Term Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
WITNESS: AMERISTEEL CORPORATION
_______________________________ By:__________________________________
Name:________________________________
_______________________________ Title:_______________________________
F-2-3
EXHIBIT F-3
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$________________ ________, ________
________ __, ____
FOR VALUE RECEIVED, AMERISTEEL CORPORATION, a Florida corporation
having its principal place of business located in Tampa, Florida (the
"Borrower"), hereby promises to pay to the order of BANK OF AMERICA, N.A. ("Bank
of America"), in its individual capacity, at Bank of America"s offices located
at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000 (or at such other place or
places as Bank of America may designate) at the times set forth in the Second
Amended and Restated Credit Agreement dated as of September 13, 2000 among the
Borrower, the financial institutions party thereto (collectively, the
"Lenders"), Bank of America, N.A., as administrative agent for the Lenders (the
"Administrative Agent"), and The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as Collateral Agent (as amended, supplemented or otherwise modified from
time to time, the "Agreement" -- all capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement), in lawful
money of the United States of America, in immediately available funds, the
principal amount of ______________________________________ DOLLARS
($____________) or if less than such principal amount, the aggregate unpaid
principal amount of all Swing Line Loans made by Bank of America to the Borrower
pursuant to the Agreement on the Revolving Credit Termination Date or such
earlier date as may be required pursuant to the terms of the Agreement, and to
pay interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in Articles II and
IV of the Agreement. All or any portion of the principal amount of Swing Line
Loans may be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest shall bear interest which shall be payable on demand at the
Default Rate until such principal and interest have been paid in full. Further,
in the event of such acceleration, this Note, and all other indebtedness of the
Borrower to the Lender shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest thereon at the rates set forth above.
F-3-1
Interest hereunder shall be computed on the basis of a 360 day year for
the actual number of days in the interest period.
This Note is the Swing Line Note referred to in the Agreement and is
issued pursuant to and entitled to the benefits and security of the Agreement to
which reference is hereby made for a more complete statement of the terms and
conditions upon which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of Florida.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
THIS SWING LINE NOTE IS GIVEN IN SUBSTITUTION AND NOT IN PAYMENT OF
THAT SWING LINE NOTE OF THE BORROWER DATED JULY 14, 1998 ISSUED PURSUANT TO AN
AMENDED AND RESTATED CREDIT AGREEMENT DATED JULY 14, 1998, AS AMENDED.
[SIGNATURE PAGE FOLLOWS.]
F-3-2
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
WITNESS: AMERISTEEL CORPORATION
_______________________________ By:__________________________________
Name:________________________________
_______________________________ Title:_______________________________
F-3-3
[TRENAM XXXXXX LETTERHEAD]
September 13, 2000
Bank of America, N.A.
As Administrative Agent and
Each of the Lenders Party to the
Credit Agreement Referenced Below
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Re: Second Amended and Restated Credit Agreement among Bank
of America, N.A., as Administrative Agent, the Lenders
party thereto and AmeriSteel Corporation
Ladies and Gentlemen:
We have acted as counsel for AmeriSteel Corporation, a corporation
organized and existing under the laws of Florida (the "Borrower") in connection
with credit facilities in the aggregate amount of $285,000,000, including a Term
Loan Facility of $100,000,000 and a revolving Credit Facility of $185,000,000,
including a Letter of Credit Facility of $50,000,000 as part of the Revolving
Credit Facility, being made available to the Borrower by you pursuant to the
Second Amended and Restated Credit Agreement dated this date among you, the
Lenders and the Borrower (the "Credit Agreement") and the other transactions
contemplated under the Credit Agreement.
This opinion is delivered to you in accordance with the conditions set
forth in Section 7.1 of the Credit Agreement. Capitalized terms that are used
but are not otherwise defined herein and that are defined in the Credit
Agreement shall have the respective meanings set forth in the Credit Agreement.
In rendering the opinions expressed below, we have examined copies (or,
in the case of the Credit Agreement, the Notes, the Security Agreement, the
Mortgage and the Deposit Account Control Agreement, the originals) of the
following documents:
1. the Credit Agreement;
2. the Notes;
3. the Security Agreement;
4. the Mortgage;
5. the Deposit Account Control Agreements between AmeriSteel
Corporation and the institutions listed on Annex C to the Security
Agreement (the "Deposit Account Control Agreements");
G-1
The Administrative Agent and Each Lender
September 13, 2000
Page 2
6. the Articles of Incorporation and the By-Laws of the Borrower, as
certified by the Secretary of the Borrower;
7. actions of the Board of Directors of the Borrower with respect to
the Loan Documents (as hereinafter defined), as certified by the
Secretary of the Borrower; and
8. Certificates of Good Standing and similar documents issued by
authorities in the State of Florida and other states identified by
the Borrower as states in which it conducts its business.
The documents described in paragraphs 1 through 5 above are sometimes
referred to in this letter as the "Loan Documents."
The documents described in paragraphs 1 through 8 above are sometimes
referred to in this letter as the "Reviewed Documents." The opinions expressed
in this letter are based solely upon our review of the Reviewed Documents and
any other documents specifically referred to by name in this letter as having
been reviewed by us. We have not reviewed any other documents that are referred
to in or incorporated by reference into any of such documents, and we express no
opinion as to the legal implications of the relationship between such other
documents and the transactions contemplated and/or evidenced by the Reviewed
Documents with respect to the opinions expressed herein.
As to certain factual matters in connection with the preparation of this
letter, our knowledge is based upon oral inquiries made of the Borrower or its
officers or directors and our examination of copies of the Reviewed Documents,
including the factual representations and warranties contained therein. The
phrase "to our knowledge" or like reference contained herein do not imply that
the firm or any member thereof has undertaken any independent investigation
within the firm, with the Borrower or with any other persons to determine the
existence or absence of any facts or circumstances, and no inference should be
drawn merely from the firm's past and current representation of the Borrower. In
each place where the phrase "to our knowledge" or like reference appears, our
opinion is based on the actual current recollection of those persons in our firm
who have given substantive attention to the transaction that is the subject of
this opinion (including the person signing on behalf of the firm) and does not
include constructive knowledge of matters or information.
We have engaged in such investigations of law as we have deemed
necessary to render the opinions expressed in this letter. The opinions set
forth below are based in part upon the Florida and federal authorities as they
are currently compiled and reported on by customary reporting services.
We express no opinion with respect to the application to the Loan and
related transactions of any fraudulent transfer law, or the federal or state
securities laws, except to the extent expressly mentioned below.
For purposes of this letter we have assumed, with your consent, the
following: (a) the legal capacity of each natural person; (b) the legal
existence of all parties to the transaction other than the
F-2
The Administrative Agent and Each Lender
September 13, 2000
Page 3
Borrower; (c) the power and authority of each person other than persons acting
on behalf of the Borrower to execute, deliver and perform each document executed
and delivered and to do each other act done or to be done by such person; (d)
the authorization, execution and delivery by each person other than persons
acting on behalf of the Borrower of each document executed and delivered or to
be executed and delivered by such person; (e) the legality, validity, binding
effect and enforceability as to each person other than persons acting on behalf
of the Borrower of each document executed and delivered or to be executed and
delivered and of each other act done or to be done by such person; (f) the
genuineness of each signature (other than of a person signing on behalf of the
Borrower), the completeness of each document submitted to us, the authenticity
of each document reviewed by us as an original, the conformity to the original
of each document reviewed by us as a copy and the authenticity of the original
of each document received by us as a copy; (g) the truthfulness of each
statement as to all factual matters otherwise not known to us to be untruthful
contained in any document encompassed within the due diligence review undertaken
by us; (h) the accuracy on the date of the opinion as well as on the date stated
in all governmental certifications of each statement as to each factual matter
contained in such governmental certifications; (i) that the transaction complies
with all tests of good faith, fairness and conscionability required by law; (j)
that with respect to the Loan Documents and related transactions, there has been
no mutual mistake of fact and there exists no fraud or duress; and (k) other
matters customarily inherent in the giving of opinions.
We are qualified to practice law only in the State of Florida and we do
not purport to be experts in the law of any state other than Florida. We express
no opinion as to matters which may be governed by the substantive laws of any
state other than Florida and United States federal law.
This letter is provided to you by us as counsel to the Borrower, is
solely for your (including any successor to your business) benefit pursuant to
the requirements of the Credit Agreement and may not be relied upon, quoted in
whole or in part, or used in any manner by any third party or used for any other
purpose, except that other banks and financial institutions in each case who in
the ordinary course of their business regularly make or invest in loans of the
type and amount being made by the Lenders to the Borrower pursuant to the Loan
Documents and who acquire directly from a Lender an interest by way of
participation or assignment in the Lender's loans to the Borrower, may rely on
the opinions set forth in this letter as participants in the financing
contemplated by the Credit Agreement to the same extent as if they were named in
and received this letter today. The opinions expressed below are being rendered
as of the date of this letter and we specifically disclaim any obligation to
update such opinions in the future, regardless of the nature of any future
developments or our knowledge thereof. Further, we express no opinion on the
likelihood or effect of future conduct of any party, including without
limitation performance by any party under the Loan Documents. No opinions other
than those specifically set forth below are to be implied, and we specifically
disclaim any opinions by inference or implication from those specified below.
Based solely upon and in reliance on the documents and statements
referred to above, and subject to the assumptions, qualifications and
limitations set forth herein, we are of the opinion that:
G-3
The Administrative Agent and Each Lender
September 13, 2000
Page 4
1. The Borrower (i) is a corporation organized and existing under the
law of the State of Florida, the state of its incorporation, and its status is
active, (ii) has the corporate power and authority to own its property and
assets and to transact the businesses in which it is presently engaged, and
(iii) is authorized to do business and is in good standing in the states
identified by the Borrower as the states in which it conducts its business.
2. The execution and delivery by the Borrower of the Credit Agreement
and the other Loan Documents to which it is a party and the performance by the
Borrower of the Obligations under the Loan Agreement and the other Loan
Documents to which it is a party and the consummation by the Borrower of the
transactions contemplated by the Credit Agreement: (i) are within the corporate
power of the Borrower; (ii) have been duly authorized by the Board of Directors
of the Borrower; (iii) are not in contravention of the terms of the Articles of
Incorporation or By-Laws of the Borrower or, to our knowledge, of any indenture,
contract, lease, agreement, instrument or other commitment to which the Borrower
is a party or by which the Borrower or any of its properties are bound, except
where such contravention would not reasonably be expected to have a Material
Adverse Effect; (iv) do not require the consent, registration, or approval of
any governmental entity (except such as have been duly obtained, made or given,
and are in full force and effect); (v) do not contravene any statute, law,
ordinance, regulation, rule, order or other governmental restriction or, to our
knowledge, any order, writ, injunction or decree of any court applicable to or
binding upon the Borrower; and (vi) to our knowledge, do not or will not result
in the creation or imposition of any lien, pledge, charge or encumbrance of any
nature upon or with respect to any of the properties of the Borrower or any
other Credit Party, except for the Liens in your favor. No approval of the
stockholders of the Borrower is required for the execution, delivery and
performance by the Borrower of the Loan Documents to which it is a party.
3. The Borrower has duly executed and delivered each of the Loan
Documents to which it is a party, and the Credit Agreement and the other Loan
Documents to which it is a party are the legal, valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance with their
respective terms.
Our opinion concerning the validity, binding effect and enforceability
of the Loan Documents means that: (a) each such document constitutes an
effective contract under applicable law, (b) each such document is not invalid
in its entirety because of a specific statutory prohibition or public policy and
is not subject in its entirety to a contractual defense, and (c) subject to the
last sentence of this paragraph, some remedy is available if the Borrower is in
material default under any such document. This opinion does not mean that: (a)
any particular remedy is available upon a material default, or (b) every
provision of each such document will be upheld or enforced in any or each
circumstance by a court. Furthermore, the validity, binding effect and
enforceability of each such document may be limited or otherwise affected by (a)
bankruptcy, insolvency, reorganization, moratorium, or other laws affecting the
enforcement of creditors' rights and remedies generally and (b) the
unavailability of, or limitation on the availability of, a particular right or
remedy (whether in a proceeding in equity or at law) because of an equitable
principle or a requirement as to commercial reasonableness, conscionability or
good faith.
G-4
The Administrative Agent and Each Lender
September 13, 2000
Page 5
4. To our knowledge, except as set forth on Schedule 7.10 or Schedule
7.18 to the Credit Agreement, no judgments, orders, writs, decrees or
arbitration awards are outstanding against the Borrower that would reasonably be
expected to have a Material Adverse Effect nor is there pending or threatened in
writing any litigation, contested claim, investigation, arbitration, or
governmental proceeding by or against the Borrower that calls into question the
validity or enforceability of any of the Loan Documents or that, if adversely
determined, would reasonably be expected to have a Material Adverse Effect.
5. None of the transactions contemplated by the Credit Agreement,
including, without limitation, the use of the proceeds of the Loans provided for
in the Loan Documents, will violate or result in a violation of Section 7 of the
Securities Exchange Act of 1934, as amended, any regulations issued pursuant
thereto, or regulations T, U or X of the Board of Governors of the Federal
Reserve System.
6. The provisions of the Security Agreement are effective to grant to
the Collateral Agent, for itself and the other Lenders, a valid and continuing
security interest in all of the Borrower's right, title and interest in and to
the Collateral named therein to which Article 9 of the Florida UCC is applicable
in order to secure the payment and performance when due of all Obligations. Upon
the filing of a UCC Form-1 financing statement with the Department of State of
the State of Florida in June 1995 with respect to the Collateral named therein,
as such filing has been amended to reflect a name change in the Borrower, and a
Continuation Statement with such Department in June, 2000, (the "Financing
Statements"), the security interests granted pursuant to the Loan Documents
constitute valid and enforceable perfected Liens on the Collateral in the State
of Florida to the extent that (i) the Borrower has rights in the Collateral and
(ii) a security interest can be perfected therein under Article 9 of the Florida
UCC by filing.
Very truly yours,
TRENAM, KEMKER, SCHARF, BARKIN, FRYE,
X'XXXXX & XXXXXX, Professional Association
By: /s/ XXXXXX X. XXXXXXXXXX
------------------------
Xxxxxx X. Xxxxxxxxxx
G-5
SCHEDULE A TO OPINION
Pledged Interests
G-6
SCHEDULE B TO OPINION
Financing Statements
G-7
EXHIBIT H
Compliance Certificate
Bank of America, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Bank of America, N.A.,
as Administrative Agent
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Corporate Finance Department
Telefacsimile: (000) 000-0000
Reference is hereby made to the Second Amended and Restated Credit
Agreement dated as of September 13, 2000 (the "Agreement") among AmeriSteel
Corporation, a Florida corporation (the "Borrower"), the Lenders (as defined in
the Agreement), Bank of America, N.A., as Administrative Agent for the Lenders
("Administrative Agent") and The Bank of Tokyo-Mitsubishi, Ltd., New York
Branch, as Collateral Agent. Capitalized terms used but not otherwise defined
herein shall have the respective meanings therefor set forth in the Agreement.
The undersigned, a duly authorized and acting Authorized Representative, hereby
certifies to you as of __________ (the "Determination Date") as follows:
1. Calculations:
A. Compliance with Section 10.1(a): Consolidated
Leverage Ratio
1. Consolidated Indebtedness $___________
2. Cash and cash equivalents in
excess of $10,000,000 $___________
3. A.1 minus A.2 $____________
4. Consolidated EBITDA for most recent
four Fiscal Quarters
(i) Consolidated Net Income $____________
(ii) Consolidated Interest Expense $____________
(iii) taxes on income, $____________
(iv) depreciation and amortization $____________
(v) any other non-cash charges
net of non-cash credits + $____________
(vi) Knoxville facility start-up
costs * $____________
Total $____________
+ Not exceeding $25,000,000 for any Four-Quarter Period.
* For any Four-Quarter Period which includes the fiscal quarter ending on June
30, 2000.
H-1
5. Ratio of A.1 to A.4 ____ to 1.00
REQUIRED: NOT GREATER THAN: 3.75 TO 1.00
B. Compliance with 10.1(b): Consolidated Net Worth
1. Consolidated Net Worth as of immediately
preceding Fiscal Quarter $___________
2. Consolidated Net Income for immediately
preceding Fiscal Quarter $___________
x .50
3. Net proceeds of Equity Offering $___________
x.75 (x. 50 in case of Equity Offering
to Affiliate)
4. Sum of B.1 + B.2 +B.3 $___________
REQUIRED: B.4 MAY NOT BE LESS THAN B.1
C. Compliance with Section 10.1(c): Consolidated
Interest Coverage Ratio
For each period to be measured:
1. Consolidated Interest Expense:
(i) Current amortized portion of
debt discounts included in gross
interest expense $___________
(ii) the current amortized portion of
fees connected with the incurrence
of Indebtedness included in $___________
gross interest expense
(iii) portion of payments made in
connection with Capital Leases
allocable to interest expense $___________
Total $___________
2. Consolidated EBITDA for such period:
(See A.2 above) $___________
3. Ratio of C.1 to C.2 ___ to 1.00
Required: Not Less than 2.75 to 1.00
D. Compliance with Section 10.3: Capital
Expenditures
1. Capital Expenditures Fiscal Year ending
_________________
(i) all expenditures classified as "property,
H-2
plant or equipment" or comparable
items on the consolidated balance
sheet including associated trans-
action costs (excluding Costs of
Acqiusitions) $____________
(ii) present value of lease payments
under any Capital Lease
x (interest rate in lease) $____________
Total $____________
REQUIRED: NOT GREATER THAN: $40,000,000
(WITH CARRY-FORWARD FROM IMMEDIATELY
PRECEDING FISCAL YEAR OF UP TO
$7,500,000 ALLOWED)
E. Compliance with Section 10.5(f): Subordinated Debt
1. Amount of Subordinated Debt $____________
REQUIRED: NOT MORE THAN $35,000,000
F. Compliance with Section 10.5(g): Additional Debt
1. Additional Subordinated Debt
(i) Indebtedness not otherwise
covered by clauses (a) through (f)
of SECTION 10.5 $_____________
REQUIRED: NOT MORE THAN $25,000,000
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrower has not defaulted in the keeping,
observance, performance or fulfillment of its obligations pursuant to
any of the Loan Documents; and (b) no Default or Event of Default
specified in Article XI of the Agreement has occurred and is
continuing.
B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the Borrower
proposes to take the following action with respect to such Default or
Event of Default: .
(Note, if no Default or Event of Default has occurred, insert
"Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with SECTION 9.1 of
the Agreement.
H-3
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, ____.
AMERISTEEL CORPORATION
By: _______________________________
Authorized Representative
Name:______________________________
Title:_____________________________
H-4
EXHIBIT I
Form of Facility Guaranty
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement" or this "Guaranty"),
dated as of __________, ____, is made by THE UNDERSIGNED (the "Guarantor") to
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, as Administrative Agent (the
"Administrative Agent") for each of the lenders (the "Lenders" and collectively
with the Administrative Agent the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have provided to AmeriSteel Corporation
(the "Borrower") a term loan and revolving credit facility pursuant to the
Second Amended and Restated Credit Agreement dated as of September 13, 2000
among the Borrower, the Administrative Agent, The Bank of Tokyo-Mitsubishi,
Ltd., New York Branch, as Collateral Agent, and the Lenders (as from time to
time amended, revised, modified, or supplemented, the "Credit Agreement"); and
WHEREAS, the Guarantor is a new Subsidiary of the Borrower and is
therefore required to enter into this Guaranty pursuant to Section 9.19 of the
Credit Agreement; and
WHEREAS, as a condition to entering into the Credit Agreement and
making and continuing to make any loans or advances thereunder, the Guarantor is
required to guarantee to the Secured Parties payment of the Borrower's
Obligations in accordance with the terms of this Agreement; and
WHEREAS, the Guarantor will materially benefit from the loans and
advances made under the Credit Agreement, and the Guarantor is willing to enter
into this Guaranty to provide an inducement for the Secured Parties to continue
to make loans and advances under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Guarantor hereby agrees as follows:
1. GUARANTY. The Guarantor hereby unconditionally, absolutely,
continually and irrevocably guarantees to the Secured Parties the payment and
performance in full of the Borrower's Liabilities (as defined below). For all
purposes of this Guaranty Agreement, "Borrower's Liabilities" means: (a) the
Borrower's prompt payment in full, when due or declared due and at all such
times, of all Obligations and all other amounts pursuant to the terms of the
Credit Agreement, the Notes, and all other Loan Documents executed in connection
with the Credit Agreement now or at any time or times hereafter owing, arising,
due or payable from the Borrower to the Lenders, including without limitation
principal, interest, premium or fee (including, but not limited to, loan fees
and attorneys' fees and expenses); and (b) the
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Borrower's prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be performed,
observed or discharged by the Borrower under the Credit Agreement and all other
Loan Documents executed in connection therewith. The Guarantor's obligations to
the Secured Parties under this Guaranty Agreement are hereinafter collectively
referred to as the "Guarantors' Obligations"; provided, however, that the
liability of the Guarantor individually with respect to the Guarantors'
Obligations shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions of
any applicable state law.
The Guarantor agrees that it is directly and primarily liable for the
Borrower's Liabilities.
2. PAYMENT. If the Borrower shall default in payment or performance of
any Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses), or
otherwise, when and as the same shall become due, whether according to the terms
of the Credit Agreement, by acceleration, or otherwise, or upon the occurrence
of any Event of Default under the Credit Agreement that has not been cured or
waived, then the Guarantor will, upon demand thereof by the Administrative Agent
or its successors or assigns AS OF THE DATE OF SUCH DEMAND, fully pay to the
Administrative Agent, for the benefit of the Secured Parties, subject to any
restriction set forth in Section 1 hereof, an amount equal to all of Guarantors'
Obligations then due and owing.
3. UNCONDITIONAL OBLIGATIONS. This is a guaranty of payment and not of
collection. The Guarantors' Obligations under this Guaranty Agreement shall be
joint and several, absolute and unconditional irrespective of the validity,
legality or enforceability of the Credit Agreement, the Notes or any other Loan
Document or any other guaranty of the Borrower's Liabilities, and shall not be
affected by any action taken under the Credit Agreement, the Notes or any other
Loan Document, any other guaranty of the Borrower's Liabilities, or any other
agreement between the Secured Parties and the Borrower or any other Person, in
the exercise of any right or power therein conferred, or by any failure or
omission to enforce any right conferred thereby, or by any waiver of any
covenant or condition therein provided, or by any acceleration of the maturity
of any of the Borrower's Liabilities, or by the release or other disposal of any
security for any of the Borrower's Liabilities, or by the dissolution of the
Borrower or the combination or consolidation of the Borrower into or with
another entity or any transfer or disposition of any assets of the Borrower or
by any extension or renewal of the Credit Agreement, any of the Notes or any
other Loan Document, in whole or in part, or by any modification, alteration,
amendment or addition of or to the Credit Agreement, any of the Notes or any
other Loan Document, any other guaranty of the Borrower's Liabilities, or any
other agreement between the Secured Parties and the Borrower or any other
Person, or by any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which may or might in any manner or to any extent
vary the risks of the Guarantor, or might otherwise constitute a legal or
equitable discharge of a surety or a guarantor; it being the purpose and intent
of the parties hereto that this Guaranty Agreement and the Guarantors'
Obligations hereunder shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment as herein provided.
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4. CURRENCY AND FUNDS OF PAYMENT. The Guarantor hereby guarantees that
the Guarantors' Obligations will be paid in lawful currency of the United States
of America and in immediately available funds, regardless of any law, regulation
or decree now or hereafter in effect that might in any manner affect the
Borrower's Liabilities, or the rights of the Secured Parties with respect
thereto as against the Borrower, or cause or permit to be invoked any alteration
in the time, amount or manner of payment by the Borrower of any or all of the
Borrower's Liabilities.
5. SUITS. The Guarantor from time to time shall pay to the
Administrative Agent for the benefit of the Secured Parties, on demand, at the
Administrative Agent's place of business set forth in the Credit Agreement or
such other address as the Administrative Agent shall give notice of to the
Guarantor, the Guarantors' Obligations as they become or are declared due, and
in the event such payment is not made forthwith, the Administrative Agent or the
Lenders or any of them may proceed to suit against any one or more or all of the
Guarantors. At the Administrative Agent's election, one or more and successive
or concurrent suits may be brought hereon by the Administrative Agent against
any one or more or all of the Guarantors, whether or not suit has been commenced
against the Borrower, any other guarantor of the Borrower's Liabilities, or any
other Person and whether or not the Secured Parties have taken or failed to take
any other action to collect all or any portion of the Borrower's Liabilities or
have taken or failed to take any actions against any collateral securing payment
or performance of all or any portion of the Borrower's Liabilities.
6. SET-OFF AND WAIVER. The Guarantor waives any right to assert against
the Secured Parties as a defense, counterclaim, set-off or cross claim, any
defense (legal or equitable) or other claim which the Guarantor may now or at
any time hereafter have against the Borrower or the Secured Parties without
waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to the Guarantor. If at any time hereafter the Secured Party
employs counsel for advice or other representation to enforce the Guarantors'
Obligations that arise out of an Event of Default, then, in any of the foregoing
events, all of the reasonable attorneys' fees arising from such services and all
expenses, costs and charges in any way or respect arising in connection
therewith or relating thereto shall be paid by the Guarantor to the
Administrative Agent, for the benefit of the Secured Parties, on demand.
7. WAIVER; SUBROGATION.
(a) The Guarantor hereby waives notice of the following events
or occurrences: (i) the Administrative Agent's acceptance of this
Guaranty Agreement; (ii) the Lenders' heretofore, now or from time to
time hereafter making Loans and otherwise loaning monies or giving or
extending credit to or for the benefit of the Borrower, whether
pursuant to the Credit Agreement or the Notes or any other Loan
Document or any amendments, modifications, or supplements thereto, or
replacements or extensions thereof; (iii) the Secured Parties or the
Borrower heretofore, now or at any time hereafter, obtaining, amending,
substituting for, releasing, waiving or modifying the Credit Agreement,
the Notes or any other Loan Documents; (iv) presentment, demand,
default, non-payment, partial payment and protest; (v) any Secured
Party heretofore, now or at any time hereafter granting to the Borrower
(or any other party liable to the Lenders on account of the Borrower's
Liabilities) or to any certain Guarantor any indulgence or
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extensions of time of payment of the Borrower's Liabilities or
Guarantors' Obligations, respectively; and (vi) any Secured Party
heretofore, now or at any time hereafter accepting from the Borrower,
any other Guarantor, any other guarantor of the Borrower's Liabilities
or any other Person, any partial payment or payments on account of the
Borrower's Liabilities or any collateral securing the payment thereof
or the Administrative Agent settling, subordinating, compromising,
discharging or releasing the same. The Guarantor agrees that each
Secured Party may heretofore, now or at any time hereafter do any or
all of the foregoing in such manner, upon such terms and at such times
as each Secured Party, in its sole and absolute discretion, deems
advisable, without in any way or respect impairing, affecting, reducing
or releasing the Guarantor from the Guarantors' Obligations, and the
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) The Guarantor hereby agrees that payment or performance by
the Guarantor of the Guarantors' Obligations under this Guaranty
Agreement may be enforced by the Administrative Agent on behalf of the
Lenders upon demand by the Administrative Agent to the Guarantor
without the Administrative Agent being required, the Guarantor
expressly waiving any right it may have to require the Administrative
Agent, to (i) prosecute collection or seek to enforce or resort to any
remedies against the Borrower or any other Guarantor or any other
guarantor of the Borrower's Liabilities, or (ii) seek to enforce or
resort to any remedies with respect to any security interests, Liens or
encumbrances granted to the Administrative Agent by the Borrower, any
other Guarantor or any other Person on account of the Borrower's
Liabilities or any guaranty thereof, IT BEING EXPRESSLY UNDERSTOOD,
ACKNOWLEDGED AND AGREED TO BY THE GUARANTOR THAT DEMAND UNDER THIS
GUARANTY AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF
THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE
CREDIT AGREEMENT. Neither the Administrative Agent nor any Lender shall
have any obligation to protect, secure or insure any of the foregoing
security interests, Liens or encumbrances on the properties or
interests in properties subject thereto. The Guarantors' Obligations
shall in no way be impaired, affected, reduced, or released by reason
of any Secured Party's failure or delay to do or take any of the acts,
actions or things described in this Guaranty including, without
limiting the generality of the foregoing, those acts, actions and
things described in this Section 7.
(c) The Guarantor further agrees with respect to this Guaranty
that such Guarantor shall have no right of subrogation, reimbursement
or indemnity, nor any right of recourse to security for the Borrower's
Liabilities until the Facility Termination Date.
8. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date hereof and shall continue in full force and effect
until the Facility Termination Date. This Guaranty Agreement shall be binding
upon and inure to the benefit of the Guarantor, the Administrative Agent and the
Lenders and their respective successors and assigns. Notwithstanding the
foregoing, no Guarantor may, except as provided in the Credit Agreement,
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without the prior written consent of the Administrative Agent, assign any
rights, powers, duties or obligations hereunder. Any claim or claims that the
Secured Parties may at any time hereafter have against a Guarantor under this
Guaranty Agreement may be asserted by any Secured Party by written notice
directed to the Guarantor.
9. REPRESENTATIONS AND WARRANTIES. The Guarantor warrants and
represents to the Administrative Agent for the benefit of the Lenders that it is
duly authorized to execute, deliver and perform this Guaranty Agreement, that
this Guaranty Agreement is legal, valid, binding and enforceable against the
Guarantor in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles; and that the Guarantor's execution, delivery and performance of this
Guaranty Agreement do not violate or constitute a breach of its certificate of
incorporation or other documents of corporate governance or any material
agreement to which the Guarantor is a party, or any applicable laws, orders,
regulations, decrees or awards of any applicable governmental authority or
arbitral body.
10. EXPENSES. The Guarantor agrees to be liable for the payment of all
reasonable fees and expenses, including attorney's fees, incurred by the
Administrative Agent in connection with the enforcement of this Guaranty
Agreement.
11. REINSTATEMENT. The Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Administrative Agent under the Credit Agreement or this
Guaranty Agreement is rescinded or must be restored for any reason or as repaid
in good faith settlement of a pending or threatened avoidance claim.
12. ATTORNEY-IN-FACT. The Guarantor hereby appoints the Administrative
Agent as the Guarantor's attorney-in-fact for the purposes of carrying out the
provisions of this Agreement and taking any action and executing any instrument
which the Administrative Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment is coupled with an interest and is
irrevocable; provided, that the Administrative Agent shall have and may exercise
rights under this power of attorney only upon the occurrence and during the
continuance of an Event of Default.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the Secured Parties,
and all obligations of the Guarantor hereunder, shall be absolute and
unconditional irrespective of:
(1) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
relating to any of the Guarantors' Obligations;
(2) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guarantors' Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument relating to any of the Guarantors' Obligations;
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(3) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Guarantors'
Obligations; or
(4) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Guarantor in respect of
the Guarantors' Obligations or of this Agreement.
14. RELIANCE. The Guarantor represents and warrants to the
Administrative Agent, for the benefit of the Secured Parties, that: (a) the
Guarantor has adequate means to obtain from Borrower, on a continuing basis,
information concerning Borrower and Borrower's financial condition and affairs
and has full and complete access to Borrower's books and records; (b) the
Guarantor is not relying on any Secured Party, its or their employees, agents or
other representatives, to provide such information, now or in the future; (c)
the Guarantor is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty; (d) the Guarantor has relied solely on the Guarantor's own independent
investigation, appraisal and analysis of Borrower and Borrower's financial
condition and affairs in deciding to provide this Guaranty and is fully aware of
the same; and (e) the Guarantor has not depended or relied on any Secured Party,
its or their employees, agents or representatives, for any information
whatsoever concerning Borrower or Borrower's financial condition and affairs or
other matters material to the Guarantor's decision to provide this Guaranty or
for any counseling, guidance, or special consideration or any promise therefor
with respect to such decision. The Guarantor agrees that neither the
Administrative Agent nor any Lender has any duty or responsibility whatsoever,
now or in the future, to provide to the Guarantor any information concerning
Borrower or Borrower's financial condition and affairs, other than as expressly
provided herein, and that, if the Guarantor receives any such information from
the Administrative Agent or any Lender, its or their employees, agents or other
representatives, the Guarantor will independently verify the information and
will not rely on the Administrative Agent or any Lender, its or their employees,
agents or other representatives, with respect to such information.
15. DEFINITIONS. All terms used herein shall be defined in accordance
with the appropriate definitions appearing in the Uniform Commercial Code as in
effect in Florida, and such definitions are hereby incorporated herein by
reference and made a part hereof.
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16. ENTIRE AGREEMENT. This Guaranty Agreement, together with the Credit
Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings, inducements,
commitments or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.
Neither this Guaranty Agreement nor any portion or provision hereof may be
changed, altered, modified, supplemented, discharged, canceled, terminated, or
amended orally or in any manner other than by an agreement, in writing signed by
the parties hereto.
17. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective successors and assigns,
except that no Guarantor shall be permitted to assign this Agreement or any
interest herein, except as permitted in the Credit Agreement. All references
herein to the Administrative Agent shall include any successor thereof, each
Lender and any other obligees from time to time of the Guarantors' Obligations.
18. SEVERABILITY. In case any Lien, security interest or other right of
any Secured Party or any provision hereof shall be held to be invalid, illegal
or unenforceable, such invalidity, illegality or unenforceability shall not
affect any other Lien, security interest or other right granted hereby or
provision hereof.
19. COUNTERPARTS. This Guaranty Agreement may be executed in any number
of counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
20. INDEMNIFICATION. Without limitation of Section 13.9 of the Credit
Agreement or any other indemnification provision in any Loan Document, the
Guarantor hereby covenants and agrees to pay, indemnify, and hold the Secured
Parties harmless from and against any and all other reasonable out-of-pocket
liabilities, costs, expenses or disbursements of any kind or nature whatsoever
arising in connection with any claim or litigation by any Person resulting from
the execution, delivery, enforcement, performance and administration of this
Guaranty Agreement or the Loan Documents, or the transactions contemplated
hereby or thereby, or in any respect relating to the Collateral or any
transaction pursuant to which the Guarantor has incurred any Guarantors'
Obligations (all the foregoing, collectively, the "indemnified liabilities");
provided, however, that the Guarantor shall have no obligation hereunder with
respect to indemnified liabilities directly or primarily arising from the
willful misconduct or gross negligence of the Administrative Agent or any
Lender. The agreements in this subsection shall survive repayment of all
Guarantors' Obligations, termination or expiration of this Guaranty Agreement
and occurrence of the Facility Termination Date.
21. TERMINATION. This Guaranty Agreement and all Guarantors'
Obligations hereunder shall terminate on the Facility Termination Date.
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22. REMEDIES CUMULATIVE. All remedies hereunder are cumulative and are
not exclusive of any other rights and remedies of the Administrative Agent
provided by law or under the Credit Agreement, the other Loan Documents, or
other applicable agreements or instruments. The making of the Loans to the
Borrower pursuant to the Credit Agreement and the extension of the Revolving
Credit Facility and the Term Loan Facility to the Borrower pursuant to the
Credit Agreement shall be conclusively presumed to have been made or extended,
respectively, in reliance upon the Guarantor's guaranty of the Guarantors'
Obligations pursuant to the terms hereof.
23. NOTICES. Any notice required or permitted hereunder shall be given,
(a) with respect to the Guarantor, at the address of the Borrower indicated in
Section 13.2 of the Credit Agreement and (b) with respect to the Administrative
Agent or a Lender, at the Administrative Agent's address indicated in Section
13.2 of the Credit Agreement. All such notices shall be given and shall be
effective as provided in Section 13.2 of the Credit Agreement.
24. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE
NOTWITHSTANDING ITS EXECUTION AND DELIVERY OUTSIDE SUCH STATE.
(b) THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
HILLSBOROUGH STATE OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, 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) THE GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) AND IN ACCORDANCE WITH SECTION 13.2
OF THE CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
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(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT OR ANY 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 THE GUARANTOR
OR ANY OF THE GUARANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION WITH THE FOREGOING, THE GUARANTOR HEREBY
AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND
HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN SUCH ACTION OR
PROCEEDING.
[Signature Page Follows.]
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IN WITNESS WHEREOF, the parties have duly executed this Guaranty
Agreement on the day and year first written above.
[ [insert name of Guarantor ]
______________________________________________
WITNESS:
_____________________ By:
Name:_______________________________________
_____________________ Title:______________________________________
ACCEPTED BY:
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders
WITNESS:
_____________________ By:
Name:_______________________________________
_____________________ Title:______________________________________
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EXHIBIT J
Form of Security Agreement
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is made and entered
into as of _______________, ____ by THE UNDERSIGNED (the "Grantor") in favor of
(i) the Lenders and the Issuing Banks (as defined in the Credit Agreement
referred to below), (ii) BANK OF AMERICA, N.A.,, a national banking association
organized and existing under the laws of the United States, in its capacity as
administrative agent (the "Administrative Agent") and (iii) THE BANK OF
TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH, in its capacity as collateral agent and
documentation agent for the Lenders (in such capacity the "Collateral Agent" and
collectively with the Administrative Agent, the "Agents") (the Agents, the
Lenders and the Issuing Banks hereinafter each a "Secured Party" and
collectively the "Secured Parties"). Terms used herein and not otherwise defined
shall have the meanings given to them in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Secured Parties have provided AMERISTEEL CORPORATION (the
"Borrower") a term loan and revolving credit facility pursuant to the Second
Amended and Restated Credit Agreement dated as of September 13, 2000 (as from
time to time amended, modified, supplemented or restated, the "Credit
Agreement") among the Borrower, the Agents and the Lenders;
WHEREAS, the Grantor is a new Subsidiary of the Borrower and as
required by Section 9.19 of the Credit Agreement has guaranteed the full payment
and performance of the Borrower's Obligations under the Credit Agreement
pursuant to the Guaranty Agreement dated as of the date hereof between the
Grantor and the Administrative Agent (the "Guaranty"); and
WHEREAS, the Grantor is also required to enter into this Security
Agreement pursuant to Section 9.19 of the Credit Agreement; and
WHEREAS, the Grantor will materially benefit from the Loans and
Advances to be made under the Credit Agreement and the Grantor is a party to
that certain Guaranty Agreement (the "Guaranty") dated as of the date hereof
pursuant to which the Grantor guaranteed the Obligations of the Borrower; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Guaranty, the Grantor is willing to grant to the
Collateral Agent for the benefit of the Secured Parties a security interest in
certain of its personal property and assets;
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AGREEMENT
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to extend credit and the Issuing Banks to issue Letters of Credit
under the Credit Agreement, the Grantor hereby agrees with the Secured Parties
and with the Collateral Agent for its benefit and the benefit of the other
Secured Parties as follows:
SECTION 1. CREATION OF SECURITY INTEREST. The Grantor hereby sells,
assigns and transfers unto the Collateral Agent, and does hereby grant to the
Secured Parties and to the Collateral Agent, as Collateral Agent for, and for
the benefit of, itself and the other Secured Parties, a continuing security
interest of first priority in, to and under all of the Grantor's right, title
and interest in and to the collateral described in section 2 hereof (the
"Collateral") in order to secure the payment and performance when due of all
Obligations (as hereinafter defined).
SECTION 2. COLLATERAL. The Collateral is:
(a) ACCOUNTS. All of the Grantor's accounts, whether now
existing or existing in the future, including, without limitation, (i) all
accounts receivable (whether or not specifically listed on schedules furnished
to the Collateral Agent), including, without limitation, all accounts created by
or arising from all of the Grantor's sales of goods or rendition of services
made under any of the Grantor's trade names, or through any of its divisions,
(ii) all unpaid seller's rights (including rescission, replevin, reclamation and
stopping in transit) relating to the foregoing or arising therefrom, (iii) all
rights to any goods represented by any of the foregoing, including returned or
repossessed goods, (iv) all reserves and credit balances held by the Grantor
with respect to any such accounts receivable or account debtors and (v) all
guarantees or collateral, including letters of credit, for any of the foregoing
(all of the foregoing property and similar property included as Collateral under
Section 2(d) below being hereinafter referred to as "Accounts");
(b) INVENTORY. All of the Grantor's inventory including,
without limitation, (i) all raw materials, work-in-process, parts, components,
assemblies, supplies and materials used or consumed in the Grantor's business,
wherever located and whether in the possession of the Grantor or any other
Person; (ii) all goods, wares and merchandise, finished or unfinished, held for
sale or lease or leased or furnished or to be furnished under contracts of
service, wherever located and whether in the possession of the Grantor or any
other Person and (iii) all goods returned to or repossessed by the Grantor (all
of the foregoing property and similar property included as Collateral under
Section 2(d) below being hereinafter referred to as "Inventory");
(c) BANK ACCOUNTS. All of the Grantor's rights, title and
interest in all bank accounts in which the Grantor has or may have an interest;
and
(d) AFTER-ACQUIRED COLLATERAL AND PROCEEDS. The Collateral
includes all items described in this Section 2, whether now owned or hereafter
at any time acquired by the Grantor and wherever located, and includes all
replacements, additions, accessions, substitutions, repairs, proceeds and
products relating thereto or therefrom, and all documents, ledger sheets and
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files of the Grantor relating thereto. Proceeds hereunder include (i) whatever
is now or hereafter received by the Grantor upon the sale, exchange, collection
or other disposition of any item of Collateral, whether such proceeds constitute
inventory, accounts, accounts receivable, general intangibles, instruments,
securities (including, without limitation, United States of America Treasury
Bills), credits, claims, demands, documents, letters of credit and letter of
credit proceeds, chattel paper, documents of title, certificates of title,
certificates of deposit, warehouse receipts, bills of lading, leases, deposit
accounts, money, tax refund claims, contract rights, goods or equipment and (ii)
any such items which are now or hereafter acquired by the Grantor with any
proceeds of Collateral hereunder.
SECTION 2A. OBLIGATIONS SECURED. The Collateral and the security
interest created hereunder shall secure payment in full when due of (a) all
obligations of the Grantor under the Guaranty and (b) the unpaid principal of
and interest on (including interest accruing on or after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Grantor, the Borrower or any Subsidiary,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans, any reimbursement obligation or indemnity of the
Borrower on account of Letters of Credit or any accommodation extended with
respect to applications for Letters of Credit, including all Reimbursement
Obligations, and (c) all other obligations and liabilities of the Grantor and
the Borrower or any Subsidiary to the Secured Parties, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with this
Security Agreement, the Credit Agreement, the Notes, the Letters of Credit, any
other Loan Document and any other document made, delivered or given in
connection herewith or therewith, and each other obligation and liability,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, whether on account of principal, interest, fees,
indemnities, costs or expenses (including, without limitation, all fees and
disbursements of counsel to the Collateral Agent or the other Secured Parties),
of the Grantor or any Subsidiary to the Secured Parties, pursuant to the terms
of the Credit Agreement, this Security Agreement or any of the other Loan
Documents (collectively, the "Obligations").
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Grantor represents,
warrants and covenants, which representations, warranties and covenants shall
survive execution and delivery of this Security Agreement, as follows:
(a) The Grantor is a corporation duly organized and validly
existing and in good standing under the laws of the state of its incorporation
and has full power and authority to execute, deliver and perform this Security
Agreement, to carry on its business as now being or proposed to be conducted and
to own all of its property.
(b) The Chief Executive office of the Grantor is located at
the address specified in Annex A hereto. The Grantor has no places of business
other than its chief executive office and those set forth in Annex A. All
Inventory, if any (except for Inventory in transit), held on the date hereof by
the Grantor is located at one or more of the locations shown on Annex A. The
originals of all documents evidencing all Accounts of the Grantor and the only
original books of account and records of the Grantor relating thereto are, and
will continue to be,
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kept at such chief executive office or at the locations shown on Annex A, or at
such new locations as the Grantor may establish in accordance with Section 4(b).
The Grantor's business is being conducted solely under the name
"_________________________", and its business is being conducted solely under
that name.
(c) All filings, registrations and recordings necessary or
appropriate to create, preserve, protect and perfect the security interest
granted by the Grantor to the Collateral Agent hereby in respect of the
Collateral have been accomplished and the security interest granted to the
Collateral Agent pursuant to this Security Agreement in and to the Collateral
constitutes a valid and enforceable perfected security interest therein superior
and prior to the rights of all other Persons therein and subject to no other
Liens (except that the Collateral may be subject to Liens permitted under
Section 10.4(b), (c), (d) and (e) (the "Permitted Liens") of the Credit
Agreement) and is entitled to all the rights, priorities and benefits afforded
by the Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests.
(d) There is no financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) covering or
purporting to cover any interest of any kind in the Collateral which names the
Grantor as the debtor thereunder, and so long as the Revolving Credit Facility
has not been terminated or any of the Obligations remain unpaid, the Grantor
will not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted hereby by the Grantor.
(e) This Security Agreement is made with full recourse to the
Grantor and pursuant to and upon all the warranties, representations, covenants
and agreements on the part of the Grantor contained herein, in the Credit
Agreement and otherwise in writing in connection herewith or therewith.
(f) The Grantor is, and as to Collateral acquired by it from
time to time after the date hereof will be, the owner of all Collateral free
from any Lien or other right, title or interest of any Person (other than Liens
created hereby and other Permitted Liens).
(g) Except as permitted in the Credit Agreement, none of the
Collateral is subject to contractual obligations or other restrictions that may
restrict or inhibit the Agent's rights or abilities to sell or dispose of the
Collateral or any part thereof after the occurrence of an Event of Default.
(h) The execution, delivery and performance by the Grantor of
this Security Agreement (i) have been duly authorized by all requisite corporate
action of the Grantor, (ii) do not require the approval of the stockholder(s) of
the Grantor and (iii) will not (1) violate any law or regulation applicable to
the Grantor or the certificate or articles of incorporation or by-laws of the
Grantor, (2) violate or constitute (with due notice or lapse of time or both) a
default under any contract or agreement to which the Grantor is a party or by
which it or any of its properties are bound or affected, (3) violate any order
of any court, tribunal or governmental agency
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binding upon the Grantor or its properties or (4) result in the creation or
imposition of any Lien of any nature whatsoever upon any properties or asset of
the Grantor (other than the security interest created by the Grantor in favor of
the Lenders and the Agent hereunder).
(i) No approval or consent of, or filing or registration with,
any federal, state or local regulatory authority is required in connection with
the Grantor's execution, delivery and performance of this Security Agreement.
(j) This Security Agreement constitutes the Grantor's legal,
valid and binding obligation, enforceable against the Grantor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting enforceability
of creditors' rights generally or equitable principles at the time in effect.
SECTION 4. COVENANTS OF THE GRANTOR. (a) The Grantor will defend the
Collateral against all claims and demands of all persons at any time claiming
the same or any interest therein (other than Permitted Liens and the security
interest created hereby) unless the Collateral Agent agrees otherwise in
writing. The Grantor will not permit any Lien notices with respect to the
Collateral or any portion thereof to exist or be on file in any public office,
except with respect to Liens created hereunder or Permitted Liens.
(b) The Grantor will not (i) change the location of its chief
executive office or establish any place of business other than those set forth
in Annex A, (ii) move or permit movement of the Collateral from the locations
specified in Annex A or (iii) voluntarily or involuntarily change its identity
or corporate structure, unless in each case the Grantor shall have given the
Collateral Agent 30 days' prior written notice thereof and shall have in advance
executed and caused to be filed and/or delivered to the Collateral Agent any
financing statements or other documents reasonably requested by the Collateral
Agent to maintain the security interest of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect in accordance with Section 4(c) hereof all in form and
substance satisfactory to the Collateral Agent.
(c) The Grantor will, promptly upon request by the Collateral
Agent, execute and deliver or use its best efforts to procure any document
(including, without limitation, warehouseman or processor disclaimers, landlord
waivers, disclaimers or subordination agreements with respect to any and all
inventory that is a part of the Collateral), give any notices, execute and file
any financing statements, mortgages or other documents, all in form and
substance satisfactory to the Collateral Agent, xxxx any chattel paper, deliver
any chattel paper or instruments to the Collateral Agent and take any other
actions that are necessary or, in the opinion of the Collateral Agent, desirable
to perfect or continue the perfection and (except to the extent provided in the
Credit Agreement with respect to certain Permitted Liens) the first priority of
the Collateral Agent's security interest in the Collateral, to protect the
Collateral against the rights, claims, or interests of third persons other than
holders of Permitted Liens or tot effect the purposes of this Security
Agreement. To the extent required in the Credit Agreement, the Grantor will pay
all costs incurred in connection with any of the foregoing. The Grantor
authorizes the Collateral Agent to file any such financing statements without
the signature of the Grantor.
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(d) Without the prior written consent of the Collateral Agent,
the Grantor will not in any way hypothecate or create or permit to exist any
Lien, security interest, charge or encumbrance on or other interest in the
Collateral, except for Permitted Liens and the Lien created by this Security
Agreement, and the Grantor will not sell, transfer, assign, pledge, collaterally
assign, exchange or otherwise dispose of the Collateral, except as permitted in
the Credit Agreement. If the proceeds of any such sale are notes, instruments,
documents of title, letters of credit or chattel paper, such proceeds shall be
promptly delivered to the Collateral Agent to be held as Collateral hereunder.
If the Collateral, or any part thereof, is sold, transferred, assigned,
exchanged, or otherwise disposed of in violation of these provisions, the
security interest of the Collateral Agent shall continue in such Collateral or
part thereof notwithstanding such sale, transfer, assignment, exchange or other
disposition, and the Grantor will hold the proceeds thereof in a separate
account for the benefit of the Collateral Agent and the other Secured Parties.
Following such a sale, the Grantor will transfer such proceeds to the Collateral
Agent in kind.
(e) The Grantor will not enter into any agreement or
understanding which may restrict or inhibit the Collateral Agent's rights or
ability to sell or otherwise dispose of the Collateral or any part thereof after
the occurrence of an Event of Default.
(f) Upon the occurrence and during the continuance of an Event
of Default, the Collateral Agent shall have the right at any time to make any
payments and do any other acts the Collateral Agent may deem necessary to
protect its security interests in the Collateral, including, without limitation,
the rights to pay, purchase, contest or compromise any encumbrance, charge or
Lien which, in the reasonable judgment of the Collateral Agent, appears to be
prior to or superior to the security interests granted hereunder, and appear in
and defend any action or proceeding purporting to affect its security interests
in, and/or the value of, the Collateral.
(g) The Grantor shall promptly (but in no event later than one
(1) Business Day) after its receipt thereof, deliver to the Collateral Agent any
documents or certificates of title issued with respect to any property included
in the Collateral, and any promissory notes, letters of credit or instruments
related to or otherwise in connection with any property included in the
Collateral, which in any such case came into the possession of the Grantor, or
shall cause the issuer thereof to deliver any of the same directly to the
Collateral Agent, in each case with any necessary endorsements in favor of the
Collateral Agent. Such documents, certificates of title, promissory notes,
letters of credit or instruments shall in each case be delivered in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Agent.
(h) In furtherance of the continuing assignment and security
interest in the Accounts of the Grantor granted pursuant to this Security
Agreement, upon the creation of Accounts, the Grantor will keep and maintain, at
its own cost and expense, satisfactory and complete records of its Accounts,
including, but not limited to, the originals of all documentation with respect
thereto, records of all payments received, all credits granted thereon, all
merchandise returned and all other dealings therewith, and will execute and
deliver to the
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Collateral Agent in such form and manner as the Collateral Agent may require,
solely for its convenience in maintaining records of Collateral, such
confirmatory schedules of Accounts, and other appropriate reports designating,
identifying and describing the Accounts as the Collateral Agent may require. In
addition, upon the Collateral Agent's request, the Grantor shall provide the
Collateral Agent with copies of agreements with, or purchase orders from, the
customers of the Grantor and copies of invoices to customers, proof of shipment
or delivery and such other documentation and information relating to said
Accounts and other Collateral as the Collateral Agent may require, at the
Grantor's own cost and expense. Failure to provide the Collateral Agent with any
of the foregoing shall in no way affect, diminish, modify or otherwise limit the
security interests granted herein. The Grantor hereby authorizes the Collateral
Agent to regard the Grantor's printed name or rubber stamp signature on
assignment schedules or invoices as the equivalent of a manual signature by the
Grantor's authorized officers or agents.
(i) Unless an Event of Default has occurred, and is
continuing, the Grantor may and will enforce, collect and receive all amounts
owing on the Accounts, for the benefit of and on behalf of the Secured Parties
such privilege shall terminate automatically, however, upon the occurrence of an
Event of Default, or which has not otherwise been waived by the Lenders as
provided in the Credit Agreement. Any checks, cash, notes or other instruments
or property received by the Grantor with respect to any Accounts shall be held
by the Grantor in trust for the benefit of the Secured Parties, separate from
the Grantor's own property and funds, and immediately turned over to the
Collateral Agent with proper assignments or endorsements. No checks, drafts or
other instruments received by the Collateral Agent shall constitute-final
payment unless and until such instruments have actually been collected.
(j) The Grantor agrees to notify the Collateral Agent promptly
of any matters materially affecting the value, enforceability or collectability
of any Account, and of all material customer disputes, offsets, defenses,
counterclaims, returns and rejections, and all reclaimed or repossessed
merchandise or goods; provided, however, that such notice shall only be required
as to any such matter that affects Accounts outstanding at one time from any
account debtor having a value greater than $100,000. The Grantor agrees to issue
credit memos promptly (with duplicates to the Collateral Agent upon its request
for same) upon accepting returns or granting allowances, and may continue to do
so until the occurrence of an Event of Default that has not been waived by the
Collateral Agent. After the occurrence and during the continuance of an Event of
Default, the Grantor agrees that all returned, reclaimed or repossessed
merchandise or goods shall be set aside by the Grantor, marked with the Secured
Parties' names and (i) held by the Grantor for the Secured Parties' account as
owners and assignees or (ii) if the Collateral Agent directs, sold by the
Grantor in the ordinary course of business.
(k) The Grantor will do nothing to impair the rights of the
Secured Parties and the Collateral Agent in the Collateral. The Grantor assumes
all liability and responsibility in connection with the Collateral acquired by
it and the liability of the Grantor to pay its obligations shall in no way be
affected or diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to the
Grantor.
(l) The Grantor agrees that if any warehouse receipt or
receipt in the nature of a warehouse receipt is issued with respect to any of
its Inventory, such warehouse receipt or
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receipt in the nature thereof shall not be "negotiable" (as such term is used in
Section 7-104 of the Uniform Commercial Code as in effect in any relevant
jurisdiction or under other relevant law).
SECTION 5. REMEDIES; WAIVER OF CLAIMS; APPLICATION OF PROCEEDS.
(a) Upon the occurrence and during the continuance of any
Event of Default which has not been waived by the Agents at the direction of the
Required Lenders, the Collateral Agent may exercise, at the cost and expense of
the Grantor, all rights of a secured party under the applicable Uniform
Commercial Code with respect to the Collateral and may take any action permitted
under the Credit Agreement. Without limiting the generality of the foregoing the
Collateral Agent may, personally or by agents or attorneys: (i) remove from any
premises where same may be located any and all documents, instruments, files and
records (including the copying of any computer records), and any receptacles or
cabinets containing same, relating to the Accounts, or the Collateral Agent may
use (at the expense of the Grantor) such of the supplies or space of the Grantor
at the Grantor's place of business or otherwise, as may be necessary to properly
administer and control the Accounts or the handling of collections and
realizations thereon; (ii) bring suit, in the name of the Grantor, the
Collateral Agent or the Lenders, to enforce the Accounts and generally exercise
all other rights of an owner of the Accounts, including, without limitation, the
right to: accelerate or extend the time of payment, settle, compromise, release
in whole or in part any amounts owing on any Accounts and issue credits in the
name of the Grantor or the Lenders; (iii) sell, assign and deliver the Accounts
and any returned, reclaimed or repossessed merchandise, with or without
advertisement, at public or private sale, for cash, on credit or otherwise, at
the Collateral Agent's sole option and discretion, and any Lender may bid or
become a purchaser at any such sale, free from any right of redemption, which
right is hereby expressly waived by the Grantor; (iv) foreclose the security
interests in the Accounts created pursuant to the Loan Documents by any
available judicial procedure; (v) take possession of any or all of the Inventory
without judicial process and enter any premises where any Inventory maybe
located for the purpose of taking possession of or removing the same; (vi)
without notice of advertisement, sell, lease, or otherwise dispose of all or any
part of the Inventory, whether in its then condition or after further,
preparation or processing, in the name of the Grantor or the Lenders, or in the
name of such other party as the Collateral Agent may designate, either at public
or private sale or at any broker's board, in lots or in bulk, for cash or for
credit, with or without warranties or representations, and upon such other terms
and conditions as the Collateral Agent in its sole discretion may deem
advisable, and the Collateral Agent or any other Lender shall have the right to
purchase at any such sale; and/or (vii) instruct the obligor or obligors on any
agreement, instrument or other obligation (including, without limitation, the
Accounts) constituting the Collateral to make any payment required by the terms
of such agreement or instrument directly to the Collateral Agent. Unless
expressly prohibited by the licensor thereof, if any, the Collateral Agent is
hereby granted a license to use all computer software programs, data bases,
processes and materials used by the Grantor in connection with its businesses or
in connection with the Collateral.
(b) If any Inventory shall require rebuilding, repairing,
maintenance or preparation, the Collateral Agent shall have the right, at its
option, to do such of the aforesaid as
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is necessary, for the purpose of putting the Inventory in such saleable form as
the Collateral Agent shall deem appropriate. The Grantor agrees, at the request
of the Collateral Agent, to assemble the Inventory and to make it available to
the Collateral Agent at places which the Collateral Agent shall select, whether
at the premises of the Grantor or elsewhere, and to make available to the
Collateral Agent the premises and facilities of the Grantor for the purpose of
the Collateral Agent's taking possession of, removing or putting the Inventory
in saleable form and to deliver possession of the Inventory or any part thereof
to the Collateral Agent.
(c) If notice of intended disposition of any Collateral is
required by law, the Grantor agrees that five (5) Business Days notice shall
constitute reasonable notification.
(d) The net cash proceeds resulting from the Collateral
Agent's exercise of any of the foregoing rights (after deducting all charges,
costs and expenses, including reasonable attorneys fees) shall be applied by the
Collateral Agent to the payment of the Grantor's Obligations to the Collateral
Agent and the other Secured Parties, whether due or to become due, in accordance
with Section 5(i). The Grantor shall remain liable to the Collateral Agent and
the other Secured Parties for any deficiencies, and the Collateral Agent and the
other Secured Parties in turn agree to remit to the Grantor or its successors or
assigns, any surplus resulting therefrom.
(e) The enumeration of the foregoing rights is not intended to
be exhaustive and the exercise of any right shall not preclude the exercise of
any other rights, all of which shall be cumulative, and any repossession or
retaking or sale of the Collateral pursuant to the terms hereof shall not
operate to release the Grantor from the obligations or its obligations hereunder
or under the other Credit Documents.
(f) In no event shall prior recourse to any Accounts or other
Collateral be a prerequisite to the Collateral Agent's or any other Secured
Party's right to demand payment of any obligation upon its maturity or upon the
occurrence of an Event of Default.
(g) The Grantor's obligation to deliver the Collateral to the
Collateral Agent pursuant to this Section 5 is of the essence of this Security
Agreement and, accordingly, upon application to a court of equity having
jurisdiction, the Collateral Agent shall be entitled to a decree requiring
specific performance by the Grantor of such obligation.
(h) Except as otherwise provided in this Security Agreement,
THE GRANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND
JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING POSSESSION OR
THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES AND ANY SUCH RIGHT WHICH THE GRANTOR WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, and the
Grantor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except
any damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct;
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(ii) all other requirements as to the time, place and terms of
sale or other requirements with respect to the enforcement of the
Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable
law in order to prevent or delay the enforcement of this Security
Agreement or the absolute sale of the Collateral or any portion
thereof, and the Grantor, for itself and all who may claim under it,
insofar as it or they now or hereafter lawfully may, hereby waives the
benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the Grantor therein and thereto, and
shall be a perpetual bar both at law and in equity against the Grantor and
against any and all Persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under
the Grantor.
The proceeds of any Collateral obtained or disposed of pursuant to this
Section 5 shall be applied as follows:
(i) to the payment of any and all expenses and fees (including
reasonable attorneys' fees) incurred by the Collateral Agent in
obtaining, taking possession of removing, insuring, repairing, storing
and disposing of Collateral and any and all amounts incurred by the
Collateral Agent in connection therewith; and
(ii) next, any surplus then remaining to the payment of the
obligations in such order and priority as set forth in Section 11.5 of
the Credit Agreement;
it being understood that the Grantor shall remain liable to the extent of any
deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of the sums referred to in clauses (i) and (ii) of this section
5(i) with respect to the Grantor.
(j) In case the Collateral Agent shall have instituted any
proceeding to enforce any right, power or remedy under this Security Agreement
by foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to the Collateral Agent, then and in every such case the Grantor, the Collateral
Agent and each holder of any of the obligations shall be restored to their
former positions and rights hereunder with respect to the Collateral subject to
the security interest created under this Security Agreement, and all rights,
remedies and powers of the Collateral Agent shall continue as if no such
proceeding had been instituted.
SECTION 6. MISCELLANEOUS PROVISIONS.
SECTION 6.1. Notices. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the form
and manner set forth in Section
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13.2 of the Credit Agreement, and delivered (a)
with respect to the Grantor, at the Borrower's address indicated in Section 13.2
of the Credit Agreement, and (b) with respect to the Agents or a Lender, at the
Agents' addresses indicated in Section 13.2 of the Credit Agreement.
SECTION 6.2. HEADINGS. The headings in this Security Agreement are for
purposes of reference only and shall not affect the meaning or construction of
any provision of this Security Agreement.
SECTION 6.3. SEVERABILITY. The provisions of this Security Agreement
are severable, and if any clause or provision shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect, in that jurisdiction only, such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
security Agreement in any jurisdiction.
SECTION 6.4. AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver
of any provision of this Security Agreement and any consent to any departure by
the Grantor from any provision of this Security Agreement shall be effective
only if made or given in compliance with Section 13.6 of the Credit Agreement.
SECTION 6.5. INTERPRETATION OF AGREEMENT. Time is of the essence in
each provision of this Security Agreement of which time is an element. All terms
not defined herein or in the Credit Agreement shall have the meaning set forth
in the applicable Uniform Commercial Code, except where the context otherwise
requires. To the extent a term or provision of this Security Agreement conflicts
with the Credit Agreement and is not dealt with herein with more specificity,
the Credit Agreement shall control with respect to the subject matter of such
term or provision. Acceptance of or acquiescence in a course of performance
rendered under this Security Agreement shall not be relevant in determining the
meaning of this Security Agreement even though the accepting or acquiescing
party had knowledge of the nature of the performance and opportunity for
objection.
SECTION 6.6. CONTINUING SECURITY INTEREST; TRANSFER OF NOTES. This
Security Agreement shall create a continuing security interest in the Collateral
and shall (i) remain in full force and effect (notwithstanding the occurrence of
the Facility Termination Date) until payment in full (including after the
Facility Termination Date) of the Obligations and termination of the Credit
Agreement and the other Loan Documents, (ii) be binding upon the Grantor, its
successors and assigns and (iii) inure, together with the rights and remedies of
the Collateral Agent hereunder, for the benefit of the Agents, the other Secured
Parties and their respective successors, transferees and assigns. Without
limiting the generality of clause (iii) above, any Lender may, except as limited
by the express terms of the Credit Agreement, assign or otherwise transfer any
Note held by it to any other Person, and such other Person shall thereupon
become vested with all the rights, benefits and security interests hereunder
existing in respect thereof.
SECTION 6.7. REINSTATEMENT. To the extent permitted by law, this
Security Agreement shall continue to be effective or be reinstated if at any
time any amount received by the Collateral Agent or any other Secured Party in
respect of the Obligations is rescinded or must
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otherwise be restored or returned by the Collateral Agent or any other Secured
Party or as repaid in good faith settlement of a pending or threatened avoidance
claim upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Grantor or upon the appointment of any receiver,
intervenor, conservator, trustee or similar official for the Grantor or any
substantial part of its assets, or otherwise, all as though such payments had
not been made.
SECTION 6.8. SURVIVAL OF PROVISIONS. All representations, warranties
and covenants of the Grantor contained herein shall survive the execution and
delivery of this Security Agreement, and shall terminate only upon the full and
final payment and performance by the Grantor of the obligations secured hereby
and termination of the Credit Agreement and the other Loan Documents.
SECTION 6.9. SETOFF. The Secured Parties shall have the rights of
setoff set forth in Section 13.3 of the Credit Agreement.
SECTION 6.10. POWER OF ATTORNEY. (a) The Grantor hereby irrevocably
authorizes and appoints the Collateral Agent, or any Person or agent the
Collateral Agent may designate, as the Grantor's attorney-in-fact, at the
Grantor's cost and expense, to exercise, subject to the limitations set forth
below, all of the following powers in addition to the powers granted by law or
otherwise set forth in this Security Agreement, which being coupled with an
interest, shall be irrevocable until all of the Obligations have been paid and
satisfied in full and the Credit Agreement is terminated:
(1) To receive, take, endorse, sign, assign and deliver, all
in the name of the Collateral Agent or any other Secured Party any and
all checks, notes, drafts, and other documents or instruments relating
to the Collateral;
(2) To request, at any time from customers indebted on
Accounts verification of information concerning the Accounts and the
amounts owing thereon;
(3) Upon the occurrence and during the continuance of a
Default, to receive, open and dispose of all mail addressed to the
Grantor and to notify postal authorities to change the address for
delivery thereof to such address as the Collateral Agent may designate;
(4) Upon the occurrence and during the continuance of a
Default, to give customers indebted on Accounts notice of the Secured
Parties' interest therein, and/or to instruct such customers to make
payment directly to the Collateral Agent for the Grantor's account; and
(5) Upon the occurrence and during the continuance of a
Default, to take or bring, in the name of the Collateral Agent, any
other Secured Party or the' Grantor, all steps, actions, suits or
proceedings deemed by the Collateral Agent necessary or desirable to
enforce or effect collection of the Accounts.
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(b) In addition to all of the powers granted to the Collateral
Agent pursuant to (a) above, the Grantor hereby appoints and constitutes the
Collateral Agent and its designee as the Grantor's attorney-in-fact to exercise
all of the following powers upon and at any time after the occurrence and during
the continuance of an Event of Default (i) collection of Accounts or proceeds of
any Collateral, (ii) conveyance of any item of Collateral to any purchaser
thereof, (iii) giving of any notices or recording any Liens under Section 4(c)
hereof, and (iv) making of any payments or taking any acts under Section 4(d)
hereof. The Collateral Agent's authority hereunder shall include, without
limitation, the authority to endorse and negotiate, for the Collateral Agent's
own account, any checks or instruments in the name of the Grantor, execute and
give receipt for any certificate of ownership or any document, transfer title to
any item of Collateral, send verifications of Accounts to any customer, sign the
Grantor's name on all financing statements or any other documents deemed
necessary or appropriate to preserve, protect or perfect ` the security interest
in the Collateral and to file the same, prepare, file and sign the Grantor's
name on any notice of Lien, assignment or satisfaction of Lien or similar
document in connection with any Account and prepare, file and sign the Grantor's
name on a proof of claim in bankruptcy or similar document against any customer
of the Grantor, and to take any other actions arising from or incident to the
powers granted to the Collateral Agent in this Security Agreement. This power of
attorney is coupled with an interest and is irrevocable by the Grantor.
SECTION 6.11. AUTHORITY OF THE COLLATERAL AGENT. The Collateral Agent
shall have and be entitled to exercise all powers hereunder which are
specifically granted to the Collateral Agent by the terms hereof, together with
such powers as are reasonably incident thereto. The Collateral Agent may perform
any of its duties hereunder or in connection with the Collateral by or through
agents or employees and shall be entitled to retain counsel and to act in
reliance upon the advice of counsel concerning all such matters. Neither the
Collateral Agent nor any director, officer, employee, attorney or agent of the
Collateral Agent shall be liable to the Grantor for any action taken or omitted
to be taken by it or them hereunder, except for its or their own gross
negligence or willful misconduct, nor shall the Collateral Agent be responsible
for the validity, effectiveness or sufficiency of this Security Agreement or of
any document or security furnished pursuant hereto. The Collateral Agent and its
directors, officers, employees, attorneys and agents shall be entitled- to rely
on any communication, instrument or document reasonably believed by it or them
to be genuine and correct and to have been signed or sent by the proper person
or persons.
SECTION 6.12. RELEASE; TERMINATION OF AGREEMENT. Subject to the
provisions of Section 6.7 hereof, this Security Agreement shall terminate upon
full and final payment and performance of all the Obligations and the occurrence
of the Facility Termination Date. At such time, the Collateral Agent shall, at
the request of the Grantor, reassign and redeliver to the Grantor all of the
Collateral hereunder which has not been sold, disposed of, retained or applied
by the Collateral Agent in accordance with the terms hereof. Such reassignment
and redelivery shall be without warranty by or recourse to the Collateral Agent,
except as to the absence of any prior assignments by the Collateral Agent of its
interest in the Collateral, and shall be at the expense of the Grantor.
SECTION 6.13. COUNTERPARTS. This Security Agreement may be executed in
one
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or more counterparts, each of which shall be deemed an original but all of
which shall together constitute one and the same agreement.
SECTION 6.14. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE NOTWITHSTANDING ITS
EXECUTION AND DELIVERY OUTSIDE SUCH STATE.
(b) THE GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN
ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HILLSBOROUGH, STATE OF
FLORIDA, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
SECURITY AGREEMENT, THE GRANTOR EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION
OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING, AND THE GRANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION
OR PROCEEDING.
(c) THE GRANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS
IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL
(POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION 13.2 OF THE
CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE ANY SECURED PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE
THE GRANTOR OR ANY OF THE GRANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS SECURITY AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE
DELIVERED IN CONNECTION THEREWITH, THE GRANTOR HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY
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IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH
PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
SECTION 6.15. DELAYS; PARTIAL EXERCISE OF REMEDIES. NO DELAY OR
OMISSION OF THE COLLATERAL AGENT OR ANY OTHER SECURED PARTY TO EXERCISE ANY
RIGHT OR REMEDY HEREUNDER, WHETHER BEFORE OR AFTER THE HAPPENING OF ANY EVENT OF
DEFAULT, SHALL IMPAIR ANY SUCH RIGHT OR SHALL OPERATE AS A WAIVER THEREOF OR AS
A WAIVER OF ANY SUCH EVENT OF DEFAULT. NO SINGLE OR PARTIAL EXERCISE BY THE
COLLATERAL AGENT OR ANY OTHER SECURED PARTY OF ANY RIGHT OR REMEDY SHALL
PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF, OR PRECLUDE ANY OTHER RIGHT OR
REMEDY.
SECTION 6.16. INDEMNITY. (a) The Grantor shall and hereby agrees to
indemnify, defend and hold harmless the Collateral Agent and-its directors,
officers, agents, employees and counsel (each herein called an "Indemnitee")
from and against (i) any and all losses, claims, damages, liabilities,
deficiencies, judgments or expenses (collectively, "Losses") incurred by any of
them (except, in the case of any Indemnitee, to the extent that any such Loss is
finally judicially determined to have resulted from such Indemnitee's own gross
negligence or willful misconduct) arising out of or by reason of any
litigations, investigations, claims or proceedings which arise out of or are in
any way related to (A) this Security Agreement, any other Loan Document or the
transactions contemplated hereby or thereby, (B) the Collateral Agent entering
into this Security Agreement, the other Loan Documents or any other agreements
and documents relating hereto, including, without limitation, amounts paid in
settlement, court costs and the reasonable fees and disbursements of counsel
incurred in connection with any such litigation, investigation, claim or
proceeding or any advice rendered in connection with any of the foregoing and
(ii) any Losses, claims, damages, liabilities or deficiencies incurred in
connection with any remedial or other action taken by the Grantor or any Secured
Party in connection with compliance by the Grantor or any of its properties,
with any Environmental Laws. if and to the extent that the obligations of the
Grantor hereunder are unenforceable for any reason, the Grantor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law. The Grantor's obligations
hereunder shall survive any termination of this Security Agreement and the other
Loan Documents and the payment in full of the Obligations, and are in addition
to, and not in substitution of, any other of their obligations set forth in this
Security Agreement.
(b) The Grantor shall also, upon demand, (i) pay to the
Collateral Agent all costs or expenses (including reasonable fees and
disbursements of counsel) incurred by the Collateral Agent in connection with
the preparation of this Security Agreement and the other Loan Documents and (ii)
pay to the Collateral Agent and each Lender all costs and expenses (including
the reasonable fees and disbursements of counsel and other professionals) paid
or incurred by the Collateral Agent or such Lender in (A) enforcing or-defending
its rights under or in respect of this Security Agreement, the other Loan
Documents or any other document or instrument now or hereafter executed and
delivered in connection herewith, (B) in collecting the Loans, (C) in
foreclosing or otherwise collecting upon the Collateral or any part thereof and
(D)
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obtaining any legal, accounting or other advice in connection with any of
the foregoing.
(c) Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement shall constitute Obligations secured
by the Collateral. The indemnity obligations of the Grantor contained in this
Section 6.16 shall continue in full force and effect notwithstanding the full
payment of all the Notes issued under the Credit Agreement and all of the other
Obligations and notwithstanding the discharge thereof.
SECTION 6.17. OBLIGATIONS ABSOLUTE. The obligations of the Grantor
under this Security Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of, or addition or supplement to or
deletion from, any of the Loan Documents or any other instrument or agreement
referred to therein, or any assignment or transfer of any thereof; (ii) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such instrument or agreement or this Security Agreement or any
exercise or non-exercise of any right, remedy, power or privilege under or in
respect of this Security Agreement or any other Loan Document; (iii) any
furnishing of any additional security to the Collateral Agent or any acceptance
thereof or any sale, exchange, release, surrender or realization of or upon any
security by the Collateral Agent; or (iv) any invalidity, irregularity or
unenforceability of all or any part of the obligations or of any security
therefor.
SECTION 6.18. GRANTOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that the Grantor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Collateral Agent shall not have any obligations or
liabilities with respect to any Collateral by reason of or arising out of or in
connection with this Security Agreement, nor shall the Collateral Agent be
required or obligated in any manner to perform or fulfill any of the obligations
of the Grantor under or with respect to any Collateral.
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IN WITNESS WHEREOF, the undersigned has caused this Security
Agreement to be duly executed and delivered as of the day and year first above
written.
GRANTOR:
[ insert name of Grantor ]
--------------------------------------------
WITNESS:
_____________________ By:
Name:
_____________________ Title:
AGENTS:
BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders
WITNESS:
_____________________ By:_________________________________________
Name:_______________________________________
_____________________ Title:______________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as Collateral Agent for the
Lenders
WITNESS:
_____________________ By:_________________________________________
Name:_______________________________________
_____________________ Title:______________________________________
J-17
EXHIBIT K
Form of Pledge Agreement
THIS STOCK PLEDGE AGREEMENT (the "Agreement") is made and entered into
as of this 12th day of September, 2000 by and among AMERISTEEL CORPORATION, a
Florida corporation (the "Borrower"), BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, in its
capacity as administrative agent (the "Administrative Agent") for each of the
financial institutions (the "Lenders") now or hereafter party to the Credit
Agreement (as defined below), and THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK
BRANCH in its capacity as collateral agent and documentation agent for the
Lenders (in such capacity, the "Collateral Agent" and, together with the
Lenders, the "Secured Parties"). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned thereto in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, the Lenders have provided to AmeriSteel Corporation (the
"Borrower") a term loan and revolving credit facility pursuant to the Second
Amended and Restated Credit Agreement dated as of September 12, 2000 among the
Borrower, the Administrative Agent, the Collateral Agent and the Lenders (as
from time to time amended, revised, modified, or supplemented, the "Credit
Agreement"); and
WHEREAS, as collateral security for the payment and performance of all
of the Borrower's Obligations, the Borrower is willing to pledge and grant to
the Collateral Agent for the benefit of the Lenders a security interest in all
of the issued and outstanding shares of capital stock, whether now in existence
or hereafter issued, of each of its Domestic Subsidiaries, and at least 65% of
the issued and outstanding shares of capital stock or equivalent indicia of
ownership under the law or practice of any foreign jurisdiction, whether now in
existence or hereafter issued, of each of its Foreign Subsidiaries, all of which
are required to be subject to a Pledge Agreement pursuant to the Credit
Agreement (the "Pledged Stock"), including without limitation the Pledged Stock
in such Subsidiaries more particularly described on Schedule I hereto (such
Subsidiaries, and together with other Subsidiaries whose capital stock may be
required to be subject to a Pledge Agreement from time to time, are hereinafter
referred to collectively as the "Pledged Subsidiaries"), as well as the
Partnership Interests listed on Schedule II hereto together with all other
Partnership Interests that may be required to be subject to a Pledge Agreement
(the "Partnership Interests" and collectively with the Pledged Stock, the
"Pledged Securities"); and
WHEREAS, the Secured Parties are unwilling to enter into the Loan
Documents unless the Borrower enters into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and to make Loans and in consideration of the premises and
the mutual covenants contained herein, the parties hereto agree as follows:
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1. PLEDGE OF STOCK AND PARTNERSHIP INTERESTS; OTHER COLLATERAL.
(a) As collateral security for the payment and performance of all
Obligations of the Borrower under the Credit Agreement (the "Secured
Obligations"), the Borrower hereby pledges and collaterally assigns to the
Collateral Agent for the benefit of the Lenders, and grants to the Collateral
Agent for the benefit of the Lenders a first priority lien and security interest
in, the Pledged Securities and all of the following:
(i) all cash, securities, dividends, rights, and other
property at any time and from time to time declared or distributed in
respect of or in exchange for any or all of the Pledged Securities,
other than cash dividends permitted to be retained by the Borrower
under Section 9 hereof;
(ii) all other property hereafter delivered to the Collateral
Agent in substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such property
and all cash, securities, interest, dividends, rights, and other
property at any time and from time to time declared or distributed in
respect of or in exchange for any or all of the Pledged Securities; and
(iii) all proceeds of any of the foregoing.
All such Pledged Securities, certificates, instruments, cash, securities,
interest, dividends, rights and other property referred to in this SECTION 1,
other than cash dividends issued in respect of such Pledged Securities that are
permitted to be retained by the Borrower under Section 9 hereof, are herein
collectively referred to as the "Collateral." All of the Pledged Securities
described on SCHEDULES I AND II in effect from time to time are currently owned
by the Borrower and represented by the stock certificates listed on SCHEDULES I
AND II hereto. Certificates evidencing all the Pledged Securities, together with
stock powers or powers of assignment duly executed in blank by the Borrower,
have been delivered to the Collateral Agent.
(b) The Borrower agrees to deliver all the Collateral to the Collateral
Agent at such location or locations as the Collateral Agent shall from time to
time designate by written notice pursuant to SECTION 25 hereof for its custody
at all times until termination of this Agreement, together with such instruments
of assignment and transfer as requested by the Collateral Agent.
(c) The Borrower agrees to deliver all share certificates, documents,
agreements, financing statements, amendments thereto, assignments or other
writings as the Collateral Agent may reasonably request to carry out the terms
of this Agreement or to protect or enforce the lien and security interest in the
Collateral hereunder granted thereby to the Collateral Agent for the benefit of
the Lenders and further agrees to do and cause to be done all things determined
by the Collateral Agent to be reasonably necessary to perfect and keep in full
force the Lien in the Collateral hereunder granted thereby in favor of the
Collateral Agent for the benefit of the Lenders, including, but not limited to,
the prompt payment of all documented out-of-pocket fees and expenses incurred in
connection with any filings made to perfect or continue the lien and security
interest in the Collateral hereunder granted thereby in favor of the Collateral
Agent for the benefit of the Lenders. The Borrower agrees to make appropriate
entries upon its books and records (including without limitation its stock
record and transfer books) disclosing the Lien in
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the Collateral hereunder granted thereby to the Collateral Agent for the benefit
of the Lenders hereunder.
(d) All advances, charges, costs and expenses, including reasonable
attorneys' fees, incurred or paid by the Agents or any Lender in exercising any
right, power or remedy conferred by this Agreement, or in the enforcement
thereof, shall become a part of the Secured Obligations and shall be paid to the
Administrative Agent for the benefit of the Lenders by the Borrower immediately
upon demand therefor, with interest thereon until paid in full at the interest
set forth in the Credit Agreement so long as there is no Default or Event of
Default and if there is a Default or Event of Default at the Default Rate for
Base Rate Loans.
2. STATUS OF PLEDGED STOCK. The Borrower hereby represents and warrants
to the Collateral Agent for the benefit of the Lenders that (i) all of the
Partnership Interests are validly issued and outstanding and constitute all of
the equity interests or securities of the Partnership now owned, beneficially or
of record, by the Borrower, (ii) all of the shares of Pledged Stock are validly
issued and outstanding, fully paid and nonassessable and constitute all the
authorized, issued and outstanding shares of common stock of each of the Pledged
Subsidiaries which are Domestic Subsidiaries and at least 65% of the authorized,
issued and outstanding shares of common stock of each of the Pledged
Subsidiaries which are Foreign Subsidiaries, (iii) the Borrower is the
registered and record and beneficial owner of its Pledged Securities, free and
clear of all Liens, charges, equities, encumbrances and restrictions on pledge
or transfer (other than the Liens created under the Loan Documents and
restrictions imposed by applicable law), (iv) the Borrower has full corporate
power, legal right and lawful authority to execute this Agreement and to pledge,
assign and transfer such Pledged Securities in the manner and form hereof, and
(v) the pledge, assignment and delivery of such Pledged Securities by the
Borrower to the Collateral Agent for the benefit of the Lenders pursuant to this
Agreement creates, together with the delivery of the certificates evidencing the
Pledged Securities, which delivery has heretofore been accomplished, a valid and
perfected first priority security interest in such Pledged Securities in favor
of the Collateral Agent for the benefit of the Lenders, securing the payment of
the Secured Obligations. Except as permitted under SECTIONS 10.6 OR 10.8 of the
Credit Agreement, none of the Pledged Securities (nor any interest therein or
thereto) shall be sold, transferred or assigned, nor any Lien created therein,
without the Administrative Agent's prior written consent, which may be withheld
for any reason. The Borrower covenants with the Collateral Agent for the benefit
of the Lenders that it shall at all times cause the Pledged Stock to be
represented by the certificates now and hereafter delivered to the Collateral
Agent in accordance with Section 1 hereof and that it shall not cause, suffer or
permit any of the Pledged Subsidiaries to issue any capital stock, or securities
convertible into, or exercisable or exchangeable for, capital stock, at any time
during the term of this Agreement other than to the Borrower and subject to this
Agreement pursuant to SECTION 23 hereof. The Borrower covenants with Collateral
Agent that it shall at all times cause the Partnership Interests to be and
remain uncertificated and the Lien created hereunder to be registered on the
books and records of each Partnership maintained to record the ownership and
transfer of ownership of Partnership Interests, and in the event,
notwithstanding the foregoing, the Partnership Interests or any of them are
certificated, to deliver such certificates promptly to the Collateral Agent
together with such instruments of assignment and transfer duly executed in blank
by the Borrower as the
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Collateral Agent shall request. The Borrower covenants with the Collateral Agent
for the benefit of the Lenders that if at any time the Pledged Securities shall
not be represented by the certificates being delivered to the Collateral Agent
simultaneously herewith or pursuant to the immediately preceding sentence, the
Borrower shall immediately cause to be delivered to the Collateral Agent
replacement certificates representing the Pledged Securities in accordance with
Section 1 hereof.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Collateral Agent shall be under no duty or liability with
respect to the collection, protection or preservation of the Collateral, or
otherwise, other than the obligation to deal with the Collateral while in its
possession in the same manner as the Collateral Agent deals with similar
securities or property for its own account.
(b) The Borrower agrees to pay when due all taxes, charges, Liens and
assessments against the Collateral, unless being contested in good faith by
appropriate proceedings diligently conducted and against which adequate reserves
have been established in accordance with GAAP and evidenced to the reasonable
satisfaction of the Collateral Agent and provided further that all enforcement
proceedings in the nature of levy or foreclosure are effectively stayed. Upon
the failure of any Borrower to so pay or contest such taxes, charges, Liens or
assessments, the Collateral Agent at its option may pay or contest any of them
(the Collateral Agent having the sole right to determine the legality or
validity and the amount necessary to discharge such taxes, charges, Liens or
assessments).
4. DEFAULT. Upon the occurrence and during the continuance of any Event
of Default, the Collateral Agent is given full power and authority to sell,
assign and deliver or collect the whole or any part of the Collateral, or any
substitute therefor or any addition thereto, in one or more sales, with or
without any previous demands or demand of performance or, to the extent
permitted by law, notice or advertisement, in such order as the Collateral Agent
may elect; and any such sale may be made either at public or private sale at the
Collateral Agent's place of business or elsewhere, either for cash or upon
credit or for future delivery, at such price as the Collateral Agent may
reasonably deem fair; and the Collateral Agent may be the purchaser of any or
all Collateral so sold and hold the same thereafter in its own right free from
any claim of any Borrower or right of redemption. Demands of performance,
advertisements and presence of property and sale and notice of sale are hereby
waived to the extent permissible by law and the Borrower acknowledges that the
Collateral is not of a type customarily sold on a recognized market. Any sale
hereunder may be conducted by an auctioneer or any officer or agent of the
Collateral Agent. The Borrower recognizes that the Collateral Agent may be
unable to effect a public sale of the Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable law, and may be otherwise delayed or adversely
affected in effecting any sale by reason of present or future restrictions
thereon imposed by governmental authorities, and that as a consequence of such
prohibitions and restrictions the Collateral Agent may be compelled (i) to
resort to one or more private sales to a restricted group of purchasers who will
be obliged to agree, among other things, to acquire the stock for their own
account, for investment and not with a view to the distribution or resale
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thereof, or (ii) to seek regulatory approval of any proposed sale or sales, or
(iii) to limit the amount of Collateral sold to any Person or group. The
Borrower agrees and acknowledges that private sales so made may be at prices and
upon terms less favorable to the Borrower than if such Collateral was sold
either at public sales or at private sales not subject to other regulatory
restrictions, and that the Collateral Agent has no obligation to delay the sale
of any of the Collateral for the period of time necessary to permit the issuer
of such Collateral to register or otherwise qualify the Pledged Securities, even
if such issuer would agree to register or otherwise qualify for public sale
under the Securities Act or applicable state law. The Borrower agrees that
private sales made under the foregoing circumstances will not, for that reason,
be deemed to have been made in a manner which is not commercially reasonable.
The Borrower hereby acknowledges that a ready market may not exist for the
Pledged Securities since it is not traded on a national securities exchange or
quoted on an automated quotation system and agrees and acknowledges that in such
event the Pledged Securities may be sold for an amount less than a pro rata
share of the fair market value of the issuer's assets minus its liabilities. In
addition to the foregoing, the Lenders may exercise such other rights and
remedies as may be available under the Loan Documents, at law or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of the Collateral
and all sums received or collected from or on account of such Collateral shall
be applied to the payment of expenses incurred or paid by the Collateral Agent
in connection with any holding, sale, transfer or delivery of the Collateral, to
the payment of any other costs, charges, reasonable attorneys' fees or expenses
mentioned herein, and to the payment of the Secured Obligations or any part
thereof, all in such order and manner as is provided in SECTION 11.5 of the
Credit Agreement. The Collateral Agent shall, upon satisfaction in full of all
such Secured Obligations, pay any balance to the Borrower or otherwise as may be
required by applicable law.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Collateral Agent shall not be
under any duty or obligation whatsoever to make or give any presentments,
demands for performances, notices of nonperformance, protests, notice of protest
or notice of dishonor in connection with any obligations or evidences of
indebtedness held thereby as collateral, or in connection with any obligations
or evidences of indebtedness which constitute in whole or in part the Secured
Obligations secured hereunder.
7. ATTORNEY-IN-FACT. The Borrower hereby appoints the Collateral Agent
as the Borrower's attorney-in-fact for the purposes of carrying out the
provisions of this Agreement and taking any action and executing any instrument
which the Collateral Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment is coupled with an interest and is
irrevocable; PROVIDED, that the Collateral Agent shall have and may exercise
rights under this power of attorney only upon the occurrence and during the
continuance of an Event of Default. Without limiting the generality of the
foregoing, upon the occurrence and during the continuance of an Event of
Default, the Collateral Agent shall have the right and power to receive, endorse
and collect all checks and other orders for the payment of money made payable to
the Borrower representing any dividend, interest payment, principal payment or
other distribution payable or distributable in respect of, or otherwise
constituting, the Collateral or any part thereof and to give full discharge for
the same.
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8. WAIVER BY BORROWER. The Borrower waives (to the extent permitted by
applicable law) any right to require any Secured Party or any other obligee of
the Secured Obligations to (a) proceed against any other Person, including
without limitation the Borrower or any Guarantor, (b) proceed against or exhaust
any Collateral or other collateral for the Secured Obligations, or (c) pursue
any other remedy in its power; and waives (to the extent permitted by applicable
law) any defense arising by reason of any disability or other defense of any
other Person, including without limitation the Borrower or any Guarantor, or by
reason of the cessation from any cause whatsoever of the liability of any other
Person, including without limitation, the Borrower or any Guarantor. The
Collateral Agent may at any time deliver (without representation, recourse or
warranty) the Collateral or any part thereof to the Borrower and the receipt
thereof by the Borrower shall be a complete and full acquittance for the
Collateral so delivered, and the Collateral Agent shall thereafter be discharged
from any liability or responsibility therefor.
9. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to the
Pledged Securities shall be subject to the pledge hereunder, except for cash
dividends which are, to the extent permitted to be made under the Credit
Agreement, permitted to be retained by the Borrower so long as no Event of
Default shall have occurred and be continuing, and any such dividends may be
retained by the Borrower free from any Lien hereunder. Upon the occurrence and
during the continuance of any Event of Default, all such cash and other
dividends shall be promptly delivered to the Collateral Agent (together, if the
Collateral Agent shall request, with stock powers or instruments of assignment
duly executed in blank affixed to any stock certificate or other negotiable
document or instrument so distributed) to be held, released or disposed of by it
hereunder or, at the option of the Collateral Agent, to be applied to the
Secured Obligations as they become due.
(b) So long as no Event of Default shall have occurred and be
continuing, the registration of the Collateral in the name of the Borrower shall
not be changed and the Borrower shall be entitled to exercise all voting and
other rights and powers pertaining to the Collateral for all purposes not
inconsistent with the terms hereof.
(c) Upon the occurrence and during the continuance of any Event of
Default, at the option of the Collateral Agent, all rights of the Borrower to
receive and retain dividends and other distributions upon the Collateral shall
cease and shall thereupon be vested in the Collateral Agent for the benefit of
the Lenders.
(d) Upon the occurrence and during the continuance of any Event of
Default, at the option of the Collateral Agent, all rights of the Borrower to
exercise the voting or consensual rights and powers which it is authorized to
exercise with respect to the Collateral pursuant to subsection (b) above shall
cease and thereupon the Collateral Agent may, with the consent of all Lenders,
(i) cause such Collateral to be registered in the name of the Collateral Agent
or its nominee or agent for the benefit of the Lenders, and (i) exercise such
voting or consensual rights
K-6
and powers as appertain to ownership of such Collateral. To that end the
Borrower hereby appoints the Collateral Agent as its proxy, with full power of
substitution, to vote and exercise all other rights as a shareholder with
respect to the Pledged Securities hereunder upon the occurrence and during the
continuance of any Event of Default, which proxy is coupled with an interest and
is irrevocable prior to termination of this Agreement as set forth in SECTION 22
hereof, and the Borrower hereby agrees to provide such further proxies as the
Collateral Agent may request; PROVIDED, HOWEVER, that the Collateral Agent in
its discretion may from time to time refrain from exercising, and shall not be
obligated to exercise, any such voting or consensual rights or such proxy.
10. POWER OF SALE. Until the Facility Termination Date, the power of
sale and other rights, powers and remedies granted to the Collateral Agent for
the benefit of the Lenders hereunder shall continue to exist and may be
exercised by the Collateral Agent at any time and from time to time irrespective
of the fact that any Secured Obligations or any part thereof may have become
barred by any statute of limitations or that the liability of the Borrower may
have ceased.
11. OTHER RIGHTS. The rights, powers and remedies given to the
Collateral Agent for the benefit of the Lenders by this Agreement shall be in
addition to all rights, powers and remedies given to any Lenders by virtue of
any statute or rule of law. Any forbearance or failure or delay by the
Collateral Agent in exercising any right, power or remedy hereunder shall not be
deemed to be a waiver of such right, power or remedy, and any single or partial
exercise of any right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the Lenders shall continue in
full force and effect until such right, power or remedy is specifically waived
by the Required Lenders by an instrument in writing.
12. ANTI-MARSHALLING PROVISIONS. The right is hereby given by the
Borrower to the Collateral Agent, for the benefit of the Secured Parties, to
make releases (whether in whole or in part) of all or any part of the Collateral
agreeable to the Collateral Agent without notice to, or the consent, approval or
agreement of other parties and interests, including junior lienors, which
releases shall not impair in any manner the validity of or priority of the Liens
and security interests in the remaining Collateral conferred under such
documents, nor release the Borrower from its liability for the Secured
Obligations hereby secured. Notwithstanding the existence of any other security
interest in the Collateral held by the Collateral Agent, for the benefit of the
Secured Parties, the Collateral Agent shall have the right to determine the
order in which any or all of the Collateral shall be subjected to the remedies
provided in this Agreement. The proceeds realized upon the exercise of the
remedies provided herein shall be applied by the Collateral Agent, for the
benefit of the Secured Parties, in the manner provided in SECTION 11.5 of the
Credit Agreement. The Borrower hereby waives any and all right to require the
marshalling of assets in connection with the exercise of any of the remedies
permitted by applicable law or provided herein.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the Secured Parties,
and all obligations of the Borrower hereunder, shall be absolute and
unconditional irrespective of:
K-7
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
relating to any of the Secured Obligations;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument relating to any of the Secured Obligations;
(c) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
or
(d) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Borrower in respect of the
Secured Obligations or of this Agreement.
14. DEFINITIONS. All terms used herein unless otherwise defined in the
Credit Agreement shall be defined in accordance with the appropriate definitions
appearing in the Uniform Commercial Code as in effect in Florida, and such
definitions are hereby incorporated herein by reference and made a part hereof.
15. ENTIRE AGREEMENT. This Agreement, together with the Credit
Agreement, the Guaranty and other Loan Documents, constitutes and expresses the
entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Neither this Agreement nor any portion or provision hereof may be
changed, altered, modified, supplemented, discharged, canceled, terminated, or
amended orally or in any manner other than by an agreement, in writing signed by
the parties hereto.
16. FURTHER ASSURANCES. The Borrower agrees at its own expense to do
such further acts and things, and to execute and deliver such additional
conveyances, assignments, financing statements, agreements and instruments, as
the Collateral Agent may at any time reasonably request in connection with the
administration or enforcement of this Agreement or related to the Collateral or
any part thereof or in order better to assure and confirm unto the Collateral
Agent its rights, powers and remedies for the benefit of the Lenders hereunder.
The Borrower hereby consents and agrees that the issuers of or obligors in
respect of the Collateral shall be entitled to accept the provisions hereof as
conclusive evidence of the right of the Collateral Agent, on behalf of the
Lenders, to exercise its rights hereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary heretofore or
hereafter given by the Borrower or any other Person to any of such issuers or
obligors.
K-8
17. BINDING AGREEMENT; ASSIGNMENT. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto, and to their respective successors and assigns, except
that, except as provided in the Credit Agreement, the Borrower shall not assign
this Agreement or any interest herein or in the Collateral, or any part thereof,
or otherwise pledge, encumber or grant any option with respect to the
Collateral, or any part thereof, or any cash or property held by the Collateral
Agent as Collateral under this Agreement. All references herein to the
Collateral Agent shall include any successor thereof, each Lender and any other
obligees from time to time of the Secured Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrower under Swap
Agreements shall be deemed to be Secured Obligations secured hereby, and each
Lender or affiliate of a Lender party to any such Swap Agreement shall be deemed
to be a Secured Party hereunder.
19. SEVERABILITY. In case any Lien, security interest or other right of
any Secured Party or any provision hereof shall be held to be invalid, illegal
or unenforceable, such invalidity, illegality or unenforceability shall not
affect any other Lien, security interest or other right granted hereby or
provision hereof.
20. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
21. INDEMNIFICATION. Without limitation of Section 13.9 of the Credit
Agreement or any other indemnification provision in any Loan Document, the
Borrower hereby covenants and agrees to pay, indemnify, and hold the Secured
Parties harmless from and against any and all other reasonable out-of-pocket
liabilities, costs, expenses or disbursements of any kind or nature whatsoever
arising in connection with any claim or litigation by any Person resulting from
the execution, delivery, enforcement, performance and administration of this
Agreement or the Loan Documents, or the transactions contemplated hereby or
thereby, or in any respect relating to the Collateral or any transaction
pursuant to which the Borrower has incurred any Secured Obligation (all the
foregoing, collectively, the "indemnified liabilities"); provided, however, that
the Borrower shall have no obligation hereunder with respect to indemnified
liabilities directly or primarily arising from the willful misconduct or gross
negligence of the Collateral Agent or any Lender. The agreements in this
subsection shall survive repayment of all Secured Obligations, termination or
expiration of this Agreement and occurrence of the Facility Termination Date.
22. TERMINATION. This Agreement and all obligations of the Borrower
hereunder shall terminate on the Facility Termination Date, at which time the
Liens and rights granted to the Collateral Agent for the benefit of the Lenders
hereunder shall automatically terminate and no longer be in effect, and the
Collateral shall automatically be released from the Liens created hereby. Upon
such termination of this Agreement, the Collateral Agent shall, at the sole
expense of the Borrower, deliver to the Borrower the certificates evidencing the
Pledged Securities (and any other property received as a dividend or
distribution or otherwise in respect of the Pledged Securities then in its
custody), together with any cash then constituting the Collateral, not then sold
or otherwise disposed of in accordance with the provisions hereof and take such
further actions as may be necessary to effect the same and as shall be
reasonably acceptable to the Collateral Agent.
K-9
23. ADDITIONAL SHARES. If the Borrower shall acquire or hold (a) any
additional shares of capital stock of any Pledged Subsidiary or (b) any shares
of capital stock of any Subsidiary not listed on Schedule I hereto which are
required to be subject to a Pledge Agreement pursuant to the terms of Article
IV, Section 9.19 or any other provision of the Credit Agreement or (c) any
additional Partnership Interests not listed on Schedule II hereto which are
required to be subject to a Pledge Agreement pursuant to the terms of Section
9.19 or any other provision of the Credit Agreement (any such shares or
partnership interests described in clauses (a), (b) or (c) above being referred
to herein as the "Additional Securities"), the Borrower shall deliver to the
Collateral Agent for the benefit of the Lenders (i) a revised Schedule I and
Schedule II hereto reflecting the ownership and pledge of such Additional
Securities and (ii) a Stock Pledge Agreement Supplement in the form of Exhibit A
hereto with respect to such Additional Securities duly completed and signed by
the Borrower. The Borrower shall comply with the requirements of this Section 23
concurrently with the acquisition of any such Additional Securities in the case
of shares described in clause (a) above, and within the time period specified in
Article IV or elsewhere in the Credit Agreement with respect to shares described
in clauses (b) and (c) above.
24. REMEDIES CUMULATIVE. All remedies hereunder are cumulative and are
not exclusive of any other rights and remedies of the Agents provided by law or
under the Credit Agreement, the other Loan Documents, or other applicable
agreements or instruments. The making of the Loans to the Borrower pursuant to
the Credit Agreement shall be conclusively presumed to have been made or
extended, respectively, in reliance upon the Borrower's pledge of the Pledged
Securities pursuant to the terms hereof.
25. NOTICES. Any notice required or permitted hereunder shall be given,
(a) with respect to the Borrower, at the Borrower's address indicated in Section
13.2 of the Credit Agreement and (b) with respect to the Agents or a Lender, at
the Agents' addresses indicated in Section 13.2 of the Credit Agreement. All
such notices shall be given and shall be effective as provided in Section 13.2
of the Credit Agreement.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE
NOTWITHSTANDING ITS EXECUTION AND DELIVERY OUTSIDE SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
X-00
XXXXXXXXXXXX, XXXXX XX XXXXXXX, XXXXXX XXXXXX OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 13.2 OF THE CREDIT AGREEMENT, OR BY ANY OTHER
METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN
THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) or (c) HEREOF SHALL
PRECLUDE ANY SECURED PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE ANY BORROWER OR ANY OF THE BORROWER'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER AND THE AGENT ON
BEHALF OF THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
[SIGNATURE PAGE FOLLOWS.]
K-11
STOCK PLEDGE AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Stock Pledge
Agreement on the day and year first written above.
BORROWER:
AMERISTEEL CORPORATION
WITNESS:
_____________________ By:
Name:
_____________________ Title:
AGENTS:
BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders
WITNESS:
_____________________ By:
Name:
_____________________ Title:
THE BANK OF TOKYO-MITSUBISHI, LTD,
NEW YORK BRANCH, as Collateral Agent for
the Lenders
By:
Name:
Title:
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE I
------------------------ ------------------- ------------- --------------- --------------------- ------------------ ----------------
NO. OF NO. OF SHARES NO. OF CERTIFICATE NOS.
NAME OF ISSUER CLASS OF STOCK SHARES NO. OF SHARES OUTSTANDING SHARES PLEDGED FOR PLEDGED
AUTHORIZED ISSUED SHARES
------------------------ ------------------- ------------- --------------- --------------------- ------------------ ----------------
------------------------ ------------------- ------------- --------------- --------------------- ------------------ ----------------
---------------------------------------------------------------------------------------------------------------------------------
SCHEDULE II
------------------------------------------- -------------------------------------- ----------------------------------- ----------
Name of Partnership Class or Type of Partnership Partnership Interests Partnership Interests
------------------- ----------------------------- --------------------- ---------------------
Interests Outstanding Pledged
---------
------------------------------------------- -------------------------------------- ----------------------------------- ----------
------------------------------------------- -------------------------------------- ----------------------------------- ----------
EXHIBIT A
STOCK PLEDGE AGREEMENT SUPPLEMENT
THIS STOCK PLEDGE AGREEMENT SUPPLEMENT (this " Supplement"), dated as
of ______________, ____ is made by and between AMERISTEEL CORPORATION (the
"Borrower"), and BANK OF AMERICA, N.A., a national banking association organized
and existing under the laws of the United States, as Administrative Agent (the
"Administrative Agent") for each of the financial institutions (the "Lenders")
now or hereafter party to the Amended and Restated Credit Agreement dated as of
September 13, 2000 among such Lenders, the Administrative Agent, THE BANK OF
TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH, as Collateral Agent for the Lenders
(the "Collateral Agent" and, together with the Administrative Agent, the
"Agents") and the Borrower. All capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned thereto in the Stock Pledge
Agreement (as defined below).
WHEREAS, the Borrower is a party to that certain Stock Pledge Agreement
dated as of September 12, 2000 by the Borrower in favor of the Collateral Agent
for the benefit of the Lenders (the "Stock Pledge Agreement"); and
WHEREAS, the Borrower is required under the terms of the Credit
Agreement and the Stock Pledge Agreement to cause certain shares of capital
stock and certain partnership interests held by it and listed on ANNEX A to this
Supplement (the "Additional Securities") to become subject to the Stock Pledge
Agreement; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Agents and the Lenders was the obligation of the Borrower to pledge to the
Collateral Agent for the benefit of the Lenders the Additional Securities,
whether then owned and not required to be subject to a pledge or subsequently
acquired or created; and
WHEREAS, the Agents and the Lenders have required the Borrower to
pledge to the Collateral Agent for the benefit of the Lenders all of the
Additional Securities in accordance with the terms of the Credit Agreement and
the Stock Pledge Agreement;
NOW, THEREFORE, the Borrower hereby agrees as follows with the Agents,
for the benefit of the Lenders:
1. The Borrower hereby reaffirms and acknowledges the pledge and
collateral assignment to, and the grant of security interest in, the Additional
Securities contained in the Stock Pledge Agreement and pledges and collaterally
assigns to the Collateral Agent for the benefit of the Lenders, and grants to
the Collateral Agent for the benefit of the Lenders a first priority lien and
security interest in, the Additional Securities and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time declared or distributed in
respect of or in exchange for any or all of the Additional Securities,
other than cash dividends permitted to be retained by the Borrower
under Section 9 of the Pledge Agreement;
(b) all other property hereafter delivered to the Agent in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such property
and all cash, securities, interest, dividends, rights, and other
property at any time and from time to time declared or distributed in
respect of or in exchange for any or all of the Additional Securities;
and
(c) all proceeds of any of the foregoing.
The Borrower hereby acknowledges, agrees and confirms that, by its execution of
this Supplement, the Additional Securities constitute "Pledged Securities" under
and are subject to the Pledge Agreement. Each of the representations and
warranties with respect to Pledged Securities contained in the Pledge Agreement
is hereby made by the Borrower with respect to the Additional Securities. A
revised SCHEDULE I and SCHEDULE II to the Pledge Agreement reflecting the
Additional Securities and all other Pledged Securities, together with stock
certificates representing the Additional Securities with stock powers or powers
of assignment duly executed in blank by the Borrower, have been delivered
herewith to the Collateral Agent.
IN WITNESS WHEREOF, the Borrower has caused this Supplement to be duly
executed by its authorized officer as of the day and year first above written.
AMERISTEEL CORPORATION
By:
Name:
Title:
Acknowledged and accepted:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as Collateral Agent for the Lenders
By:____________________________________
Name:__________________________________
Title:___________________________________
ANNEX A
Additional Securities
Name of Class of Stock or Total Number of Certificate Numbers
------- ----------------- --------------- -------------------
Issuer or Partnership Partnership Interests Shares or
--------------------- --------------------- ---------
Partnership Interests
---------------------
Pledged
-------
EXHIBIT L
Form of Mortgage
See attached.
Drawn By and Return To:
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P. (RMM)
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
STATE OF NORTH CAROLINA DEED OF TRUST
AND
COUNTY OF MECKLENBURG SECURITY AGREEMENT
COLLATERAL IS OR INCLUDES FIXTURES
THIS DEED OF TRUST AND SECURITY AGREEMENT (the "Deed of Trust") is made
and entered into as of the 13th day of September, 2000, but not deemed delivered
or effective until recorded, by and among
AMERISTEEL CORPORATION, a Florida corporation (the "Borrower"); and
XXX, INC., a North Carolina corporation with offices in Charlotte,
North Carolina (the "Trustee"); and
BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, having its principal place of
business in Charlotte, North Carolina (the "Administrative Agent"), as
administrative agent for the lenders (the "Lenders") party to a Second Amended
and Restated Credit Agreement dated September 13, 2000, as amended, (the "Credit
Agreement") among the Borrower, the Administrative Agent, The Bank of
Tokyo-Mitsubishi, Ltd., New York branch, as Collateral Agent, and the Lenders..
W I T N E S S E T H:
The Borrower, in consideration of the indebtedness and other
obligations herein and in the Credit Agreement recited (the "Obligations"),
irrevocably grants and conveys to the Trustee and the Trustee's successors and
assigns, for the benefit of the Lenders all of the following described land,
real property interests, buildings, improvements, fixtures, furniture and
appliances and other personal property:
(a) All that tract or parcel of land and other real property interests
in the City of Charlotte, Mecklenburg County, North Carolina more particularly
described in EXHIBIT A attached hereto and made a part hereof (the "Land"); and
(b) All buildings and improvements of every kind and description now or
hereafter erected
L-1
or placed on the aforesaid Land (the "Improvements") and all materials intended
for construction, reconstruction, alteration and repair of such Improvements now
or hereafter erected thereon, all of which materials shall be deemed to be
included within the premises hereby conveyed immediately upon the delivery
thereof to the aforesaid Land, and all of the Borrower's right, title and
interest in all fixtures and articles of personal property now or hereafter
owned by the Borrower and attached to or contained in and used in connection
with the aforesaid Land and Improvements including, but not limited to, all
furniture, furnishings, apparatus, machinery, equipment, motors, elevators,
fittings, radiators, ranges, refrigerators, awnings, shades, screens, blinds,
carpeting, office equipment and other furnishings and all plumbing, heating,
lighting, cooking, laundry, ventilating, refrigerating, incinerating, air
conditioning and sprinkler equipment, telephone systems, televisions and
television systems, computer systems and fixtures and appurtenances thereto and
all renewals or replacements thereof or articles in substitution thereof,
whether or not the same are or shall be attached to the Land and Improvements in
any manner (the "Tangible Personalty") and all proceeds of the Tangible
Personalty, excluding, however, property described on Exhibit 2 to the Security
Agreement (as defined in the Credit Agreement).
TO HAVE AND HOLD the same, together with all privileges, hereditaments,
easements and appurtenances thereunto belonging, to the Trustee and the
Trustee's successors and assigns to secure the Obligations and upon this special
trust: that should the Obligations secured hereby be paid according to the tenor
and effect thereof when the same shall be due and payable and should the
Borrower timely and fully discharge its obligations hereunder, then the Land,
Improvements and Tangible Personalty (hereinafter collectively referred to as
the "Premises") shall be reconveyed to the Borrower or the title thereto shall
be revested according to the provisions of law;
And, as additional security for said Obligations, the Borrower hereby
conditionally assigns to the Administrative Agent all the security deposits,
rents, issues, profits and revenues of the Premises from time to time accruing
(the "Rents and Profits"), reserving only the right to the Borrower to collect
the same as long as there shall exist no Event of Default (as defined in Article
III).
As additional collateral and further security for the Obligations, the
Borrower does hereby assign to the Administrative Agent, for the benefit of
itself and the Lenders, and grants to the Administrative Agent, for the benefit
of itself and the Lenders, a security interest in all of the right, title and
the interest of the Borrower in and to any and all leases (including equipment
leases), rental agreements, sales contracts, management contracts, franchise
agreements, construction contracts, architects' contracts, technical services
agreements, licenses and permits now or hereafter affecting the Premises (the
"Intangible Personalty") or any part thereof, and the Borrower agrees to execute
and deliver to the Administrative Agent, for the benefit of itself and the
Lenders, such additional instruments, in form and substance satisfactory to the
Administrative Agent, as may hereafter be requested by the Administrative Agent
to evidence and confirm said assignment; provided, however, that acceptance of
any such assignment shall not be construed as a consent by the Administrative
Agent to any lease, rental agreement, management contract, franchise agreement,
construction contract, technical services agreement or other contract, license
or permit, or to impose upon the Administrative Agent any obligation with
respect thereto.
L-2
All the Tangible Personalty which comprise a part of the Premises
shall, as far as permitted by law, be deemed to be affixed to the aforesaid Land
and conveyed therewith. As to the balance of the Tangible Personalty which is
not a fixture and the Intangible Personalty, this Deed of Trust shall be
considered to be a security agreement which creates a security interest in such
items for the benefit of the Administrative Agent and the Lenders. In that
regard, the Borrower grants to the Administrative Agent, for the benefit of
itself and the Lenders, all of the rights and remedies of a secured party under
the North Carolina Uniform Commercial Code.
The Borrower, the Trustee and the Administrative Agent covenant,
represent and agree as follows:
I
THE LOAN
1.1 LOAN. The Obligations secured by this Deed of Trust is the result
of loans (the "Loans") made from time to time by the Lenders pursuant to the
Credit Agreement. All terms used herein shall have the meaning set forth in the
Credit Agreement unless otherwise defined herein.
1.2 NOTE SECURED. The Loans are evidenced by promissory notes executed
by the Borrower, payable to the order of the Lenders (such promissory notes and
all amendments, modifications, renewals or replacements thereof being
hereinafter referred to as the "Notes").
1.3 PAYMENT OF NOTE. Payment by the Borrower of principal and interest
on the Loans will be in accordance with the Credit Agreement.
1.4 AMOUNT SECURED. This Deed of Trust secures all present and future
loan disbursements made by the Lenders under the Credit Agreement together with
all other Obligations, and all other sums from time to time owing to the
Administrative Agent and the Lenders by the Borrower under the Loan Documents
(as defined in the Credit Agreement). The amount of the present disbursement
secured hereby is One Hundred Twenty Million Dollars ($120,000,000), and the
maximum principal amount which may be secured hereby at any one time is Two
Hundred Seventy-five Million Dollars ($275,000,000). The time period within
which such future disbursements are to be made is the period between the date
hereof and the date five (5) years from the date hereof. Disbursements secured
hereby shall not be required to be evidenced by a "written instrument or
notation" as described in Section 45-68(2) of the North Carolina General
Statutes, it being the intent of the parties that the requirements of Section
45-68(2) for a "written instrument or notation" for each advance shall not be
applicable to disbursements made under the Credit Agreement and Notes.
L-3
II
BORROWER'S COVENANTS, REPRESENTATIONS AND AGREEMENTS
2.1 TITLE TO PROPERTY. The Borrower represents and warrants that it is
seized of the Land and Improvements (and any fixtures) in fee (and has title to
any appurtenant easements) and has the right to convey the same, that title to
such property is free and clear of all encumbrances except for the matters shown
on EXHIBIT B attached hereto (the "Permitted Encumbrances"), and that it will
warrant and defend the title to such property except for the Permitted
Encumbrances against the claims of all persons or parties. As to the balance of
the Premises, the Rents and Profits and the Intangible Personalty, the Borrower
represents and warrants that it has title to such property, that it has the
right to convey such property and that it will warrant and defend such property
against the claims of all persons or parties.
2.2 PAYMENT OF LOAN. The Borrower will punctually pay the Obligations
secured hereby at the time and place and in the manner specified in the Credit
Agreement, this Deed of Trust or the other Loan Documents.
2.3 TAXES AND FEES. The Borrower will pay as they become due all taxes,
general and special assessments, insurance premiums, permit fees, inspection
fees, license fees, water and sewer charges, franchise fees and equipment rents
against it or the Premises, and the Borrower, upon request of the Administrative
Agent, will submit to the Administrative Agent receipts evidencing said
payments; subject, however, to the Borrower's right to contest the same as
provided in the Credit Agreement.
2.4 REIMBURSEMENT. Subject to the Borrower's rights set forth in the
Credit Agreement, the Borrower agrees that if it shall fail to pay when due any
tax, assessment or charge levied or assessed against the Premises or any utility
charge, whether public or private, or any insurance premium or if it shall fail
to procure the insurance coverage and the delivery of the insurance certificates
required hereunder, or if it shall fail to pay any other charge or fee described
in Sections 2.3 or 2.7, then the Administrative Agent, at its option, may pay or
procure the same. The Borrower will reimburse the Administrative Agent upon
demand for any reasonable sums of money paid by the Administrative Agent
pursuant to this Section, together with interest on each such payment at the
rate set forth in the Notes and all such sums and interest thereon shall be
secured hereby.
2.5 ADDITIONAL DOCUMENTS. The Borrower agrees to execute and deliver to
the Administrative Agent, concurrently with the execution of this Deed of Trust
and upon the request of the Administrative Agent from time to time hereafter,
all financing statements and other documents reasonably required to perfect and
maintain the security interest created hereby. The Borrower hereby irrevocably
(as long as the Obligations remain unpaid) makes, constitutes and appoints the
Administrative Agent as the true and lawful attorney of the Borrower to sign the
name of the Borrower (after the Borrower has failed or refused to timely execute
such documents upon request of the Administrative Agent) on any financing
statement, continuation of financing statement or similar document required to
perfect or continue such security interests.
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2.6 SALE OR ENCUMBRANCE. The Borrower will not sell, encumber or
otherwise dispose of any of the Tangible Personalty except as otherwise
permitted by the terms of the Credit Agreement, and agrees to incorporate such
into the Improvements or replace such with goods of quality and value at least
equal to that replaced. Provided, however, in the event the Borrower sells or
otherwise disposes of any of the Tangible Personalty, the Administrative Agent's
security interest in the proceeds of the Tangible Personalty shall continue
pursuant to this Deed of Trust.
2.7 FEES AND EXPENSES. The Borrower will pay or reimburse the
Administrative Agent, the Lenders and the Trustee for all reasonable attorneys'
fees, costs and expenses incurred by the Administrative Agent, the Lenders or
the Trustee in any action, legal proceeding or dispute of any kind which affects
the Obligations, the interest created herein, the Premises, the Rents and
Profits or the Intangible Personalty, including but not limited to, any
foreclosure of this Deed of Trust, enforcement of payment of the Obligations,
any condemnation action involving the Premises or any action to protect the
security hereof. Any such amounts paid by the Administrative Agent or the
Lenders shall be due and payable upon demand and shall be secured hereby.
2.8 LEASES AND OTHER AGREEMENTS. Without first obtaining on each
occasion the written approval of the Administrative Agent, the Borrower shall
not, except as permitted by the Credit Agreement and except in the ordinary
course of business, enter into, cancel, surrender or modify or permit the
cancellation of any lease (including any equipment lease), rental agreement,
management contract, franchise agreement, construction contract, technical
services agreement or other contract, license or permit now or hereafter
affecting the Premises, or modify any of said instruments, or accept or permit
to be made, any prepayment of any installment of rent or fees thereunder except
to the extent permitted in Section 2.9 hereof. Certified copies of each such
approved Lease or other agreement shall be submitted to the Administrative Agent
as soon as possible. The Borrower shall faithfully keep and perform, or cause to
be kept and performed, all of the covenants, conditions, and agreements
contained in each of said instruments, now or hereafter existing, on the part of
the Borrower to be kept and performed (including performance of all covenants to
be performed under any and all leases of the Premises or any part thereof) and
shall at all times do all things necessary and appropriate to compel performance
by each other party to said instruments of all obligations, covenants and
agreements by such other party to be performed thereunder.
2.9 PREPAYMENT OF RENT. The Borrower will not accept any prepayment of
rent or installments of rent for more than two months in advance without the
prior written consent of the Administrative Agent.
2.10 MAINTENANCE OF PREMISES. The Borrower will abstain from and will
not permit the commission of waste in or about the Premises and will maintain
the Premises in good condition and repair, reasonable wear and tear excepted.
2.11 IDENTITY OF BORROWER. The Borrower hereby acknowledges to the
Administrative Agent that (i) the identity of the Borrower and the expertise
available to the
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Borrower were and continue to be material circumstances upon which the Lenders
have relied in connection with, and which constitute valuable consideration to
the Lenders for, the extending to the Borrower of the indebtedness evidenced by
the Notes and (ii) any change in such identity or expertise could materially
impair or jeopardize the security for the payment of the Obligations granted to
the Lenders by this Deed of Trust. The Borrower therefore covenants and agrees
with the Administrative Agent and the Lenders that the Borrower shall not sell,
transfer, convey, mortgage, encumber or otherwise dispose of the Premises, the
Rents and Profits or the Intangible Personalty or any part thereof or any
interest therein or engage in subordinate financing with respect thereto during
the term of this Deed of Trust unless the Administrative Agent and the Lenders,
in their sole discretion, have given their prior written consent thereto.
2.12 COMPLIANCE WITH LAW. The Borrower will do, or cause to be done,
all such things as may be required by law in order fully to protect the security
and all rights of the Administrative Agent and the Lenders under this Deed of
Trust. The Borrower shall not cause or permit the lien of this Deed of Trust to
be impaired in any way.
2.13 INSPECTION. The Borrower will permit the Administrative Agent, the
Lenders or their agents, at all reasonable times and upon reasonable notice to
enter and pass through or over the Premises for the purpose of appraising,
inspecting or evaluating same (including any hazardous substances thereon).
2.14 RELEASES AND WAIVERS. The Borrower agrees that no release by the
Administrative Agent or the Lenders of any of the Borrower's successors in title
from liability for the Obligations, no release by the Administrative Agent or
the Lenders of any portion of the Premises, the Rents and Profits or the
Intangible Personalty, no subordination of lien, no forbearance on the part of
the Administrative Agent or the Lenders to collect on the Obligations, or any
part thereof, no waiver of any right granted or remedy available to the
Administrative Agent or the Lenders and no action taken or not taken by the
Administrative Agent or the Lenders shall in any way diminish the Borrower's
obligation to the Administrative Agent or the Lenders or have the effect of
releasing the Borrower, or any successor to the Borrower, from full
responsibility to the Administrative Agent or the Lenders for the complete
discharge of each and every of the Borrower's obligations hereunder or under the
Notes, the Credit Agreement or any other Loan Document.
2.15 INSURANCE.
(a) LIABILITY: The Borrower covenants to maintain or cause to be
maintained, by the Borrower, general accident and public liability insurance
against all claims for bodily injury, death or property damage occurring upon,
in or about any part of the Premises. The policies must be from companies and in
amounts satisfactory to the Administrative Agent. The Borrower's policy must
name the Administrative Agent as an additional insured.
(b) PERMANENT: In addition to, but without duplication of any insurance
requirements set forth in any of the other Loan Document, the Borrower covenants
to maintain or cause to be maintained an "all-risk" permanent insurance policy.
The policy must be from a company satisfactory to the Administrative Agent, must
be in an amount satisfactory to the Administrative
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Agent, must eliminate all co-insurance provisions and replace such provisions
with a Replacement Cost Endorsement satisfactory to the Administrative Agent,
must include provisions for a minimum 30-day advance written notice to the
Administrative Agent of any intended policy cancellation or non-renewal, and
must designate the Administrative Agent as mortgagee and loss payee in a
standard mortgagee endorsement, as its interest may appear.
(c) BUSINESS INTERRUPTION: The Borrower shall, at its own cost,
maintain business interruption insurance as to the buildings now or hereafter
comprising a part of the Premises. The policy must be from a company and in an
amount satisfactory to the Administrative Agent and must include provisions for
a minimum 30-day advance written notice to the Administrative Agent of any
intended policy cancellation or non-renewal.
(d) FLOOD: If any part of the Improvements is located in an area having
"special flood hazards" as defined in the Federal Flood Disaster Protection Act
of 1973, a flood insurance policy naming the Administrative Agent as mortgagee
must be submitted to the Administrative Agent. The policy must be from a company
and in an amount satisfactory to the Administrative Agent and must include
provisions for a minimum 30-day advance written notice to the Administrative
Agent of any intended policy cancellation or non-renewal.
(e) DELIVERY OF POLICIES AND RENEWALS: The Borrower agrees to deliver
to the Administrative Agent, as additional security hereto, the original
policies or other evidence acceptable to the Administrative Agent of such
insurance as is required by the Administrative Agent pursuant to subsections
(a), (b) and (c) hereof and of any additional insurance which shall be taken out
upon the Premises while any part of the Obligations shall remain unpaid.
Renewals of such policies shall be so delivered at least ten (10) days before
any such insurance shall expire. In the event the Borrower fails to maintain
insurance as required hereunder the Administrative Agent has the right to
procure such insurance whether or not the Borrower's failure to maintain such
insurance constitutes an Event of Default (as defined in Article III) or an
event or condition which, upon the giving of notice or the passage of time, or
both, would constitute an Event of Default. Any amounts paid by the
Administrative Agent for insurance shall be due and payable to the
Administrative Agent upon demand and shall be secured by this Deed of Trust.
(f) PROOF OF LOSS; CLAIMS SETTLEMENT: In the event of loss, the
Borrower shall give prompt notice thereof to the insurance carrier and the
Administrative Agent, and the Administrative Agent may make proof of loss if not
made promptly by Borrower. The Administrative Agent is hereby authorized, in its
reasonable discretion after the occurrence of a Default or an Event of Default,
to adjust, compromise and collect the proceeds of any insurance claims.
(g) USE OF PROCEEDS: The Borrower hereby assigns the proceeds of any
such insurance policies to the Administrative Agent and hereby directs and
authorizes each insurance company to make payment for such loss directly to the
Administrative Agent. The proceeds of any insurance or any part thereof are to
be applied by the Administrative Agent to restoration or repair of the property
damaged provided all of the following conditions are met:
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(i) there exists no Event of Default (as defined in Article
III) or any event or condition which, upon the giving of notice or the
passage of time, or both, would constitute an Event of Default;
(ii) the Borrower presents sufficient evidence to the
Administrative Agent that there are sufficient funds from the insurance
proceeds and from equity funds, if needed, to completely restore or
repair the damaged property;
(iii) the Borrower presents sufficient evidence to the
Administrative Agent that the damaged property will be restored prior
to the maturity date of the Loan;
(iv) the Administrative Agent and the Lenders will not incur
any liability to any other person as a result of such use or release of
insurance proceeds; and
(v) the insurance proceeds shall be held by the Administrative
Agent and disbursed in accordance with construction disbursement
procedures established by the Administrative Agent and in the manner
set forth for making Advances under the Credit Agreement as if such
proceeds were Loan proceeds as repair or restoration progresses.
If the conditions of Sections 2.15(g)(i), (ii) and (iii) are not
satisfied within ninety (90) days of loss, then the Administrative Agent may, at
its option, apply any insurance proceeds to the outstanding balance of the Loan.
2.16 EMINENT DOMAIN.
(a) PARTICIPATION IN PROCEEDINGS: Borrower shall promptly notify the
Administrative Agent of any actual or threatened initiation of any eminent
domain proceeding as to any part of the Premises and shall deliver to the
Administrative Agent copies of any and all papers served or received in
connection with such proceedings, and the Administrative Agent shall have the
right, at its option, to participate in such proceedings at the expense of
Borrower (including, without limitation, the Administrative Agent's attorneys'
fees) and Borrower will execute such documents and take such other steps as
required to permit such participation.
(b) RIGHT TO SETTLE CLAIMS: The Administrative Agent is hereby
authorized after the occurrence of a Default or an Event of Default to adjust,
compromise and collect any eminent domain award or settle a claim for damages
and to apply the same to the outstanding Obligations, subject to the provisions
of subsection (c).
(c) USE OF PROCEEDS: The Borrower assigns to the Administrative Agent
any proceeds or awards which may become due by reason of any condemnation or
other taking for public use of the whole or any part of the Premises or any
rights appurtenant thereto. The proceeds of any such condemnation award or
proceeds or any part thereof may be applied by the Administrative Agent to the
outstanding balance of the Obligations; provided that, subject to the provisions
of Section 2.16(d), such proceeds may be applied to restoration of the property
taken if the following conditions are met:
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(i) there exists no Event of Default (as defined in Article
III) or any event or condition which, upon the giving of notice or the
passage of time, or both, would constitute an Event of Default;
(ii) the Borrower presents sufficient evidence to the
Administrative Agent that (A) there are sufficient funds from the
condemnation award or proceeds and from equity funds, if needed, to
completely restore the Premises to an architectural whole, and (B) the
loss of the property taken will not materially diminish the value of
the Premises;
(iii) the Borrower presents sufficient evidence to the
Administrative Agent that the Premises will be restored to an
architectural whole prior to the maturity date of the Loan;
(iv) the Administrative Agent will not incur any liability to
any other person as a result of such use or release of proceeds;
(v) the condemnation award or proceeds shall be held by the
Administrative Agent and disbursed in accordance with construction
disbursement procedures established by the Administrative agent and in
the manner set forth for making Advances under the Credit Agreement as
if such proceeds were Loan proceeds as restoration progresses.
(d) FURTHER ASSIGNMENTS; ACCELERATION: The Borrower agrees to execute
such further assignments and agreements as may be reasonably required by the
Administrative Agent to assure the effectiveness of this Section. In the event
any governmental agency or authority shall require or commence any proceedings
for the demolition of any buildings or structures comprising a part of the
Premises, or shall commence any proceedings to condemn or otherwise take
pursuant to the power of eminent domain a material portion of the Premises and
such proceedings are not enjoined or otherwise stayed or contested and such
demolition or condemnation is effectively delayed, the Administrative Agent may,
at its option, declare the Loan to be immediately due and payable in full and
apply any condemnation awards or proceeds to the outstanding balance of the
Loan.
III
FORECLOSURE
3.1 ACCELERATION OF LOAN; FORECLOSURE. Upon the occurrence of an Event
of Default the entire amount of the Obligations shall, as provided in the Credit
Agreement, become immediately due and payable. Upon failure to pay the
Obligations in full at any stated or accelerated maturity, the Administrative
Agent may foreclose the lien of this Deed of Trust pursuant to the power of sale
hereby granted or by judicial proceeding.
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3.2 POWER OF SALE. The Trustee is hereby granted a power of sale and
may sell the Premises (together with the Rents and Profits and Intangible
Personalty), or such part or parts thereof or interests therein as the
Administrative Agent may select after first having given such notice of hearing
as to commencement of foreclosure proceedings and obtained such findings or
leave of court as then may be required by law and then having given such notice
and advertised the time and place of such sale in such manner as then may be
provided by law, and upon such sale and any resale and upon compliance with the
law then relating to foreclosure proceedings, to convey title to the purchaser.
3.3 PROCEEDS OF SALE. Following a foreclosure sale, the Trustee shall
deliver to the purchaser the Trustee's deed (and xxxx of sale as to any
personalty) conveying the property so sold without any covenant or warranty,
expressed or implied. The recitals in the Trustee's deed shall be prima facie
evidence of the statements made therein. The Trustee shall apply the proceeds of
such sale in the following order: (a) to all reasonable costs and expenses of
the sale, including but not limited to, reasonable Trustee's fees of not more
than one percent (1%) of the gross sales price and costs of title evidence; and
thereafter (b) in the manner provided in SECTION 11.5 of the Credit Agreement.
3.4 TRUSTEE'S FEES. If a foreclosure proceeding is commenced by the
Trustee but terminated prior to its completion, the Trustee's fees will be
reasonable but not more than one percent (1%) of the outstanding amount of
Loans.
IV
ADDITIONAL RIGHTS AND REMEDIES OF THE ADMINISTRATIVE AGENT
4.1 RIGHTS UPON MATURITY OR AN EVENT OF DEFAULT. Upon the Facility
Termination Date or upon the occurrence of an Event of Default, the
Administrative Agent, immediately and without additional notice and without
liability therefor to the Borrower, except for gross negligence, may do or cause
to be done any or all of the following: (a) take physical possession of the
Premises; (b) exercise its right to collect the Rents and Profits; (c) enter
into contracts for the repair and maintenance of the Improvements thereon; (d)
expend Loan funds and any rents, income and profits derived from the Premises
for payment of any taxes, insurance premiums, assessments and charges for repair
and maintenance of the Improvements, preservation of the lien of this Deed of
Trust and satisfaction and fulfillment of any liabilities or obligations of the
Borrower arising out of or in any way connected with the construction of
Improvements on the Premises whether or not such liabilities and obligations in
any way affect, or may affect, the lien of this Deed of Trust; (e) enter into
leases demising the Premises or any part thereof; (f) take such steps to protect
and enforce the specific performance of any covenant, condition or agreement in
the Notes, this Deed of Trust, the Credit Agreement, or the other Loan
Documents, or to aid the execution of any power herein granted; and (g)
generally, supervise, manage, and contract with reference to the Premises as if
the Administrative Agent were equitable owner of the Premises. Notwithstanding
the occurrence of an Event of Default or acceleration of the Loan, the
Administrative Agent shall continue to have the right to pay money, whether or
not Loan funds, for the purposes described in Sections 2.3, 2.7 and 2.15 hereof,
and all such sums
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and interest thereon shall be secured hereby. The Borrower also agrees that any
of the foregoing rights and remedies of the Administrative Agent may be
exercised at any time independently of the exercise of any other such rights and
remedies, and the Administrative Agent may continue to exercise any or all such
rights and remedies until the Event(s) of Default of the Borrower are cured with
the consent of the Administrative Agent or until foreclosure and the conveyance
of the Premises to the high bidder or until the Loan is otherwise satisfied or
paid in full.
4.2 APPOINTMENT OF RECEIVER. Upon the Facility Termination Date or upon
the occurrence of an Event of Default, the Administrative Agent shall be
entitled, without additional notice and without regard to the adequacy of any
security for the Obligations or the solvency of any party bound for its payment,
to seek the appointment of a receiver to take possession of and to operate the
Premises, and to collect the rents, issues, profits, and income thereof, all
expenses of which shall be added to the Loan and secured hereby.
4.3 WAIVERS. No waiver of any Event of Default shall at any time
thereafter be held to be a waiver of any rights of the Administrative Agent
stated anywhere in the Notes, this Deed of Trust, the Credit Agreement or any of
the other Loan Documents, nor shall any waiver of a prior Event of Default
operate to waive any subsequent Event(s) of Default. All remedies provided in
this Deed of Trust, in the Notes, in the Credit Agreement and in the other Loan
Documents are cumulative and may, at the election of the Administrative Agent,
be exercised alternatively, successively, or in any manner and are in addition
to any other rights provided by law.
V
GENERAL CONDITIONS
5.1 SUBSTITUTION OF TRUSTEE. If, for any reason, the Administrative
Agent shall elect to substitute for the Trustee herein named (or for any
successor to said Trustee), the Administrative Agent shall have the right to
appoint successor Trustee(s) by duly acknowledged written instruments, and each
new Trustee immediately upon recordation of the instrument so appointing him
shall become successor in title to the Premises for the uses and purposes of
this Deed of Trust, with all the powers, duties and obligations conferred on the
Trustee in the same manner and to the same effect as though he were named herein
as the Trustee. If more than one Trustee has been appointed, each of such
Trustees and each successor thereto shall be and hereby is empowered to act
independently.
5.2 TERMS. The singular used herein shall be deemed to include the
plural; the masculine deemed to include the feminine and neuter; and the named
parties deemed to include their heirs, successors and assigns. The term
"Administrative Agent" shall include any payee of the indebtedness hereby
secured or any transferee thereof whether by operation of law or otherwise.
5.3 NOTICES. All notices required to be given hereunder shall be in the
manner set forth in SECTION 13.2 of the Credit Agreement.
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5.4 GREATER ESTATE. In the event that Borrower is the owner of a
leasehold estate with respect to any portion of the Premises and, prior to the
satisfaction of the indebtedness and the cancellation of this Deed of Trust of
record, Borrower obtains a fee estate in such portion of the Premises, then,
such fee estate shall automatically, and without further action of any kind on
the part of Borrower, be and become subject to the security lien of this Deed of
Trust.
5.5 INVALIDATION OF PROVISIONS. Invalidation of any one or more of the
provisions of this Deed of Trust shall in no way affect any of the other
provisions hereof, which shall remain in full force and effect.
5.6 HEADINGS. The captions and headings herein are inserted only as a
matter of convenience and for reference and in no way define, limit, or describe
the scope of this Deed of Trust nor the intent of any provision hereof.
5.7 GOVERNING LAW. This Deed of Trust and Security Agreement shall be
governed by and construed under the laws of the State of North Carolina.
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IN WITNESS WHEREOF, Borrower has executed this Deed of Trust under seal
as of the above written date.
AMERISTEEL CORPORATION
By:_______________________________
Name: Xxx X. Xxxxx
Title: Chief Financial Officer
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STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this 13th day of September, 2000, personally appeared Xxx X. Xxxxx,
known to be the Chief Financial Officer of AmeriSteel Corporation (the
"Borrower"), who, being by me duly sworn, says he works at 0000 Xxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 and that by authority duly given by, and
as the act of, the Borrower, the foregoing Deed of Trust and Security Agreement
dated September 13, 2000 by and among the Borrower, the Trustee and the
Administrative Agent was signed by him as said Chief Financial Officer on behalf
of the Borrower.
Witness my hand and official seal this 13th day of September, 2000.
___________________________
Notary Public
(SEAL)
My commission expires: ________________
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EXHIBIT A
[Legal Description]
Lying and being in Long Creek Township, County of Mecklenburg, State of
North Carolina, and being more particularly described as follows:
BEGINNING at the intersection of the centerline of the Southern Railway
track with the centerline of Xxxxx Xxx Road (60-foot right-of-way), said point
being the southwest corner of the Nordic Warehouse, Inc. property as described
in Deed Book 5732, page 568 of the Mecklenburg County Registry and runs thence
with the centerline of Xxxxx Xxx Road N. 78-49-51 W., 134.49 feet to a point in
the centerline intersection of Old Statesville Road, Xxxxx Xxx Road and Lakeview
Road; thence with the centerline of Lakeview Road (50-foot right-of-way) N.
87-08-54 W., 2101.01 feet to a point, said point being the southeast corner of
the property of Xxxx Xxxx Company as described in Deed Book 6835, page 386 of
said Registry; thence with the easterly line of the property of Xxxx Xxxx
Company N. 02-46-16 E., passing an existing iron pin at 25.07 feet, a total
distance of 360.68 feet to an existing iron pin; thence N. 87-13-35 W., 475.26
feet to an existing iron pin; thence N. 02-46-49 E. 237.06 feet to a point;
thence N. 87-11-19 W. 20.0 feet to a point; thence N. 22-46-13 W. 89.24 feet to
a point; thence N. 2-47-0 E. 398.67 feet to a point; thence N. 45-31-48 W.
138.91 feet to a point; thence N. 52-18-16 W. 186.52 feet to a point; thence N.
88-6-6 W. 170.49 feet to a point ;thence N. 17-9-26 E. 52.86 feet to a point;
thence S. 88-6-22 E. 472.32 feet to a point; thence N. 2-46-49 E. 845.06 feet to
a point; thence S. 64-14-43 E. 1189.26 feet to a point; thence N. 42-45-50 E.
146.94 feet to a point; thence S. 78-46-19 E. 522.73 feet to a point; thence N.
49-12-18 E. 595.05 feet to a point in the centerline of Xxxxxx Road; thence with
the centerline of Xxxxxx Road S. 43-8-53 E. 298.12 feet to a point in the center
line of said road; thence S. 50-48-56 E. 243.60 feet to a point in the
centerline of the Southern Railway track; thence with the certerline of the
Southern Railway track with eight courses and distances as follows: (1) S.
9-1-57 W. 198.26 feet to a point; (2) S. 8-20-23 W. 110.83 feet to a point; (3)
S. 5-52-15 W. 100.24 feet to a point; (4) S. 03-33-08 W., 51.68 feet to a point;
(5) S. 0-34-31 W., 100.00 feet to a point; (6) S. 02-07-49 E., 100.00 feet to a
point; (7) S. 03-55-59 E., 100.00 feet to a point; (8) S. 05-11-59 E., passing
an existing iron pin on the northerly margin of Xxxxx Xxx Road at 1022.43 feet,
a total distance of 1053.70 feet to the point and place of BEGINNING. Containing
a total of 112.085 acres or 4,882,381.43 square feet as shown on a map entitled
"Survey for Ameristeel Corporation", prepared by X.X. Xxxxx & Associates, P.A.
dated November 3, 1988 and last revised March 26, 1999, references to which map
is hereby made for a more particular description. (File #AD-136)
X-00
XXXXXXX X
[Permitted Encumbrances]
1. Defects, liens, encumbrances, adverse claims or other matters, if any,
created first appearing in the public records or attaching subsequent to
the effective date hereof but prior to the date the proposed Insured
acquires for value of record the estate or interest or mortgage thereon
covered by this Commitment.
2. Taxes for the year 2000 and thereafter which are not yet due and payable.
3. Right of way of Southern Railroad Company over the subject property as
recorded in Book 112, Page 367, Mecklenburg County Registry.
4. Easement(s) to Duke Power Company recorded in Book 894, Page 368; Book 938,
Page 7; Book 923, Page 485; Book 1719, Page 584; Book 225, Page 375; Book
2241, Page 371; Book 3713, Page 536 and Book 4223, Page 723, Mecklenburg
County Registry.
5. Easement(s) to Southern Xxxx Telephone and Telegraph Company recorded in
Book 962, Page 318; Book 969, Page 231; Book 1121, Page 597, Book 1132,
Page 138; and Book 1451, Page 112, Mecklenburg County Registry.
6. Easement(s) to Plantation Pipe Line Company recorded in Book 1056, Page
593, Mecklenburg County Registry.
7. Lease to Duke Power Company recorded in Book 2241, Page 363, as amended in
Book 3713, Page 536 and Book 4223, Page 723, Mecklenburg County Registry.
8. Well Easement between Xxxxxxx X. Xxxx and wife, Xxxxx X. Xxxx and
Ameristeel Corporation recorded in Book 8750, Page 824, as amended by that
Modification of Easement recorded in Book 8789, Page 192, Mecklenburg
County Registry.
9. Such state of facts as would be disclosed by an accurate survey and
inspection of the premises. NOTE: Upon receipt of satisfactory plat of
survey and inspection report, this exception will be eliminated or amended
in accordance with the facts disclosed thereby.
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Schedule 1.1
Existing Letters of Credit
SCHEDULE
--------
Letters of Credit
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Letters of Credit Outstanding as of August 31, 2000
-----------------------------------------------------------------------------------------------------------
DATE DATE TO ORIGINAL
BANK L/C # ISSUED EXPIRE FOR AMOUNT BALANCE
-----------------------------------------------------------------------------------------------------------
Industrial Development
Bonds:
-----------------------------------------------------------------------------------------------------------
Bank of America 0000000 Jun, 1995 Jun, 2001 Jacksonville IRB $ 946,198 $ 946,198
-----------------------------------------------------------------------------------------------------------
Bank of America 0000000 Jun, 1995 Jun, 2001 Hillsborough County IRB $ 2,342,480 $ 2,342,480
-----------------------------------------------------------------------------------------------------------
Bank of America 0000000 Jun, 1995 Jun, 0000 Xxxxxxxxxxx County IRB $ 6,321,626 $ 6,321,626
-----------------------------------------------------------------------------------------------------------
Bank of America 0000000 Jun, 1995 Jun, 2001 Jackson IRB $20,230,137 $20,230,137
-----------------------------------------------------------------------------------------------------------
Xxxx xx Xxxxxxx 000000 Jun, 1995 Jun, 2001 Jackson IRB $ 5,057,535 $ 3,843,727
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Insurance:
-----------------------------------------------------------------------------------------------------------
Bank of America 0000000 Jan, 1999 Jan, 2001 Hartford Insurance $ 1,800,000 $ 1,050,000
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
$36,697,976 $35,734,168
-----------------------------------------------------------------------------------------------------------
S-1
Schedule 5.3
Information Regarding Collateral
Grantor:
AmeriSteel Corporation , a Florida corporation
(fka Florida Steel Corporation prior to April 1, 1996)
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Grantor's former executive office location prior to May 1995:
0000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Grantor's former subsidiary:
AmeriSteel Finance, Inc.
Delaware Trust Building
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Trade names used by Grantor:
AmeriSteel Corporation, f.k.a. Florida Steel Corporation
AmeriSteel Finance, Inc., a former subsidiary
Rail Products Division, f.k.a. Xxxxxxxx Rail Products, Inc., a former subsidiary
Atlas Steel & Wire, f.k.a. Atlas Steel & Wire Corporation, a former subsidiary
AmeriSteel - Xxxxxxx Northeast Division (for dba in Delaware & Pennsylvania)
E-Z-Link, a registered trademark
Transferors of Inventory:
Xxxxxxx Rebar Company, Inc., a Pennsylvania corporation
0000 Xxxxxxx Xxxx Xx.
Xxxx, XX 00000
Xxxxxx Xxxxx Coating Co., Inc., a Pennsylvania corporation
0000 Xxxxxxx Xxxx Xx.
Xxxx, XX 00000
Brougher LLC, a Maryland limited liability corporation
0000 Xxxxxxx Xxxx Xx.
Xxxx, XX 00000
S-2
SCHEDULE OF INVENTORY LOCATIONS
ADDRESS OF LOCATION INVENTORY COUNTY
------------------- --------- ------
FLORIDA
2025 Tigertail Yes Broward
Xxxxx, XX 00000
Xxx 000, Xxxxxx Xxxxx Xxxx Yes Xxxxx
Xxxxxxx, XX 00000
9625 Florida Mining Blvd. Yes Xxxxx
Xxxxxxxxxxxx, XX 00000
0000 Xxxxxxx Xxx. Yes Orange
Xxxxxxx, XX 00000
0000 Xxxx Xxxxxxx Xxx Xxx Xxxxxxxxxxxx
Xxxxx Xxxx, XX
0000 X. Xxxxx Xx., Xxxxx 000 No Hillsborough Leased thru 8/05:
Xxxxx, XX 00000 XXXX Real Estate
Company
0000 XX 0xx Xxxxxx Yes Broward Warehoused
Ft. Xxxxxxxxxx, XX 00000 material handling
for service fee
000 X. XxXxxx Xxxx Yes Broward Warehoused
Ft. Xxxxxxxxxx, XX 00000 material handling
for service fee
GEORGIA
0000 Xxxx Xxxxxx Xxx Xxxxxxxx
Xxxxxx, XX 00000-0000
KENTUCKY
00000 Xxxxx Xxxx Yes Jefferson
Xxxxxxxxxx, XX 00000
S-3
SCHEDULE 5.3
SCHEDULE OF INVENTORY LOCATIONS
ADDRESS OF LOCATION INVENTORY COUNTY
------------------- --------- ------
LOUISIANA
000 Xxxx Xxxxxx Yes Jefferson Annual lease:
Xxx Xxxxxxx, XX 00000 Parish Atlas Equities, LLC
NORTH CAROLINA
301 Black Satchel Drive Yes Mecklenberg
Xxxxxxxxx, XX 00000
0000 Xxxxxxxx Xxxx Yes Mecklenberg Mortgaged to
Xxxxxxxxx, XX 00000 Lenders
0000 Xxxxxx Xxxx Xxx Xxxx
Xxxxxxx, XX 00000
TENNESSEE
000 Xxxxxxxx Xxxx Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
U.S. 00 Xxxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxxx Xxx Xxxx
Xxxxxxxxx, XX 00000
0000 Xxxxx Xx. Xxx Xxxxxxxx
Xxxxxxxxx, XX 00000
SOUTH CAROLINA
0000 Xxxx Xxxxxx, X.X. Xxx Xxxxx
Xxxxx, XX 00000
0000 Xxxxxxxxx Xxxx Xxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
S-4
SCHEDULE 5.3
SCHEDULE OF INVENTORY LOCATIONS
ADDRESS OF LOCATION INVENTORY COUNTY
------------------- --------- ------
WEST VIRGINIA
000 Xxxxx Xxxxxx Yes Kanawha Leased thru 9/05:
Xx. Xxxxxx, XX 00000 Dock Leasing Co.
ARKANSAS
0000 Xxxxx Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
MARYLAND
0000 Xxxx Xxxxxx Yes Baltimore Leased thru 7/04:
Xxxxxxxxx, XX 00000 W. Xxxx Xxxxxxxx
NEW JERSEY
000 Xxxxxx Xxxxxx Yes Middlesex Leased thru 7/04:
Xxxxxxxxxx, XX 00000 Refab, LLC
PENNSYLVANIA
0000 0xx Xxxxxx Yes York Leased thru 7/04:
Xxxx, XX 00000 Coastal Steel Co.
00 Xxxxxxxxxx Xxxx Xxxx Xxx Xxxxxxxxxxxxxx
Xxxxxx, XX 00000
DELAWARE
000 Xxx Xxxxxxx Xxxx Yes New Castle Leased thru 7/04:
Xxx Xxxxxx, XX 00000 W. Xxxx Xxxxxxxx
S-5
SCHEDULE 5.3
SCHEDULE OF INVENTORY LOCATIONS
-------------------------------
ADDRESS OF LOCATION INVENTORY COUNTY
------------------- --------- ------
MILL STORAGE
00 Xxxxxx Xxxx 000 Yes Tishomingo Warehoused
Hwy 25 North material handling
Xxxx, XX 00000 for service fee
000 Xxxx 00xx Xxxxxx Yes Xxxx Warehoused
Xxxxxxx Xxxxxxx, XX 00000 material handling
for service fee
S-6
Schedule 8.4
Subsidiaries and Investments in Other Persons
None.
INVESTMENTS IN OTHER PERSONS
1. 518,200 shares of Birmingham Steel Corporation common stock.
S-7
SCHEDULE 8.6
------------
Indebtedness
Trust Indenture, dated as of November 1, 1988, between the Mecklenburg County
Industrial Facilities and Pollution Control Financing Authority and Connecticut
National Bank as Trustee, and related notes, relating to $6,180,000 Industrial
Revenue Refunding Bonds (Florida Steel Corporation Project).
Trust Indenture, dated as of November 1, 1988, between the Hillsborough County
Industrial Development Authority and Connecticut National Bank, as Trustee, and
related notes, relating to $2,290,000 Industrial Development Revenue Refunding
Bonds (Florida Steel Corporation Project).
Trust Indenture, dated as of December 1, 1988, between City of Jacksonville and
Connecticut National Bank, as Trustee, and related notes, relating to $925,000
Industrial Development Revenue Refunding Bonds (Florida Steel Corporation
Project).
Trust Indenture, dated as of October 1, 1995, between the Industrial Development
Board of the City of Xxxxxxx and Norwest Bank Minnesota, as Trustee, and related
notes, relating to $20,000,000 Solid Waste Facility Bonds (Florida Steel
Corporation Project).
Trust Indenture, dated as of September 1, 1997, between the Industrial
Development Board of the City of Xxxxxxx and Norwest Bank Minnesota, as Trustee,
and related notes, relating to $3,800,000 Solid Waste Facility Bonds (AmeriSteel
Corporation Project).
Indenture dated as of April 3, 1998, between the Company and State Street Bank
and Trust Company, as Trustee, and related notes, relating to 8-3/4% Senior
Notes due 2008 ($1,000,000 currently outstanding.)
Promissory Note dated June 10, 1999 between the Company and Tennessee Valley
Authority in the original principal amount of $1,500,000.
Indebtedness arising from a capital lease dated November 1999 between the
Company and Caterpillar Financial Services relating to the Knoxville Mill scrap
crane.
Surety bonds relating to workers' compensation collateral requirements in the
amount of $2,836,000.
S-8
SCHEDULE 8.7
------------
Liens
Lien on certain rolling mill equipment at the Knoxville Steel Mill in
conjunction with the June 10, 1999 Promissory Note and Security Agreement
between AmeriSteel Corporation and Tennessee Valley Authority.
Lien on scrap crane at the Knoxville mill in conjunction with the November 1999
capital lease.
Various protective filings on forms UCC-1 regarding leased equipment.
S-9
SCHEDULE 8.8
------------
Tax Matters
None, however we include the following for informational purposes.
Claims or disputes concerning any tax liability of GUSA, FLS Holdings or
AmeriSteel
1 IRS- claim for refund of income taxes paid:
In October 1998, FLS Holdings, Inc. and Subsidiaries filed a claim for
refund of $930,718 with the Internal Revenue Service. The claim was filed
under Section 172 of the Code, which provides an election for a 10-year
carryback of certain "specified liability" losses. These losses were
included in unutilized net operating losses for the tax years ending
9/30/91 and 9/30/93. This claim is currently under review by the IRS.
2 Mississippi Department of Revenue- income tax audit:
The State of Mississippi has audited the income tax returns for the tax
periods 3/31/97 through 3/31/99. There has been a preliminary assessment
of approximately $25,400.
S-10
Tax returns for the tax period ended 9/27/99 & 12/31/99 for which extensions
have been filed
FLS Holdings, Inc. and Subsidiaries - federal return Extended to 9/15/2000
U.S. Corporation Income Tax Return
Gerdau USA Inc. and Subsidiaries - federal return Extended to 9/15/2000
U.S. Corporation Income Tax Return
AmeriSteel Corporation- state returns for Extended to 9/15/2000
the tax periods 9/27/99 and 12/31/99
ALABAMA
ARKANSAS
DELAWARE
DISTRICT OF COLUMBIA
FLORIDA
GEORGIA
ILLINOIS
INDIANA
KENTUCKY
LOUISIANA
MARYLAND
MISSISSIPPI
MISSOURI
NEW JERSEY
NO. CAROLINA
OHIO
PENNSYLVANIA
SO. CAROLINA
TENNESSEE
VIRGINIA
WEST VIRGINIA
AmeriSteel Finance, Inc.- state return Extended to 10/1/2000
DELAWARE
S-11
SCHEDULE 8.10
-------------
Litigation
Backcharges/Claims with Xxxxxxxx/Xxxxxxxxxx on Fabricated Steel Project
Civil Action Summons from condominium project in Miami Beach, Florida
Associated Environmental Services Inc. performance bond suit
Suit against Polyflex for faulty pond liner installation. Polyflex has counter
sued for costs.
Xxxxxxx CERCLA 113 claim filed by Xxxxxxx Jericho Working Group
Xxxxxxx CERCLA 107 claim filed by State of South Carolina
Xxxxxxx Xxxxxxx vs AmeriSteel - 3rd party worker hurt by hot slag/steam
CEBI METAL SANAYI vs TICARET, A.S. vs AmeriSteel and others
Total Technical, Inc. instituted litigation against Company to receive payment
for labor, equipment, materials and technical expertise relating to the MRT
project in the amount of $50,910.
Arbitration
The Company has been advised by the American Arbitration Association that the
Teamsters Union in York, Pennsylvania, who formerly represented employees at a
facility recently acquired by AmeriSteel, is attempting to involve the Company
in an arbitration. However, AmeriSteel has not agreed to participate in the
arbitration and, based upon the advice of legal counsel, the Company does not
believe there is a legal obligation to do so.
The Borrower does not believe any of the above actions to be of a material
nature.
S-12
SCHEDULE 8.18
-------------
Environmental Matters
1. Tampa, Florida inactive mill site soil cleanup complete; groundwater
cleanup ongoing at southeast corner of property.
2. Jackson, Tennessee mill final disposal of electric arc furnace dust (EC
dust) contaminated with Cesium 137 radioactive material at third party site
completed; on-site oil and hydraulic fluid spills completed; DPD operating
and storage issues closed out.
3. Sogreen sites in Georgia, third party sites where the Borrower is a
potentially responsible party (PRP) for the remediation of groundwater
contamination.
4. Xxxxxxx, in South Carolina, a third party site where the Borrower is a PRP
for the completed on-site treatment and storage of contaminated soil and
future groundwater remediation. Involves three ongoing potential legal
actions.
5. Indiantown, Florida former mill site continuing groundwater remediation;
vault maintenance; and soil and groundwater monitoring.
6. Jacksonville, Florida mill soil and groundwater contamination remediation
related to buried and surface EC dust; shredder and scrap yard soil
remediation; shredder fluff leachate groundwater monitoring, extraction &
reuse as cooling water.
7. Charlotte, North Carolina mill landfill final report and approval of the
closed landfill.
8. Knoxville, Tennessee mill possible radioactive slag on-site.
9. Atlas plant, New Orleans, Louisiana indoor air particulate control.
10. Tampa, Florida third party sites, Peak Oil and Bay Drum soil and
groundwater remediation.
11. Additionally, the Borrower incurs significant costs (which are included in
its costs of operations in the ordinary course of business) for the ongoing
transport and disposal of EC dust from its mill operations; monitoring air,
water, ground and noise levels due to regulatory compliance (OSHA, EPA and
state environmental agencies;) and obtaining of various licenses, permits
and certificates.
The Borrower does not necessarily consider any of the above remediation efforts
to be material in nature but inc ludes them on this schedule to make the lenders
aware of those significant environmental issues which the Borrower is aware of
and which it is diligently working to resolve and or remediate. The Borrower has
reserved as liabilities on its June 30, 2000 balance sheet estimated future
costs for the above referenced environmental sites, other than those costs
incurred in the ordinary course of business and charged to operations. For a
more detailed discussion of environmental matters, please refer to AmeriSteel's
March 31, 2000 annual 10-K report filed with the SEC.
S-13
Schedule 9.5
------------
Insurance
----------------------------------------------------------------------------------------------------------------------
TYPE COVERAGE INSURER POLICY NUMBER POLICY PERIOD DEDUCTIBLE
----------------------------------------------------------------------------------------------------------------------
Property Starr Tech ST260 5992 7/1/2000 - 7/1/2001 Various
----------------------------------------------------------------------------------------------------------------------
General Liability Liberty Mutual EB1651004191040 7/1/2000 - 7/1/2004 Various
----------------------------------------------------------------------------------------------------------------------
Excess Indemnity Liberty Mutual EH1-651-004191-030 7/1/2000 - 7/1/2001 $ 500,000
----------------------------------------------------------------------------------------------------------------------
Automobile Liberty Mutual AS2-651-004191-020 7/1/2000 - 7/1/2001 None
----------------------------------------------------------------------------------------------------------------------
Umbrella AIG & Royal Binders 4763 & 4753 7/1/2000 - 7/1/2001 $ 1,000,000
----------------------------------------------------------------------------------------------------------------------
Workers' Compensation Liberty Mutual WA2-65D-004191-010 7/1/2000 - 7/1/2001 $ 500,000
----------------------------------------------------------------------------------------------------------------------
Pollution AIG PLS 2671409 7/1/2000 - 7/1/2001 $ 500,000
----------------------------------------------------------------------------------------------------------------------
Fiduciary AIG Binder 4774 7/1/2000 - 7/1/2001 $ 25,000
----------------------------------------------------------------------------------------------------------------------
Crime AIG Binder 4778 7/1/2000 - 7/1/2001 $ 50,000
----------------------------------------------------------------------------------------------------------------------
Directors & Officers AIG 000-00-00 1/1/1998 - 1/1/2001 Various
----------------------------------------------------------------------------------------------------------------------
Storage Tank C&I FPL 7510666 7/1/2000 - 7/1/2001 $ 10,000
----------------------------------------------------------------------------------------------------------------------
Group Travel Hartford ETB-12817 7/1/2000 - 7/1/2001 None
----------------------------------------------------------------------------------------------------------------------
Flood - Atlas Steel & Wire Bankers 17 0007647711 04 3/17/2000- 3/17/2001 $ 1,000
----------------------------------------------------------------------------------------------------------------------
Flood - Ft. Lauderdale Fab Bankers 09 0000000000 05 9/2/2000 - 9/2/2001 $ 1,000
----------------------------------------------------------------------------------------------------------------------
Employee Health and Aetna, CIGNA Various Various Self-insured
Dental Plans & Prudential except Life
----------------------------------------------------------------------------------------------------------------------
Kidnap & Xxxxxx Xxxxx 8180-44-63 2/17/2000 - 2/17/2001 None
----------------------------------------------------------------------------------------------------------------------
S-14
