Exhibit 10.4
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REVOLVING CREDIT AGREEMENT
Dated as of June 9, 1997
by and among
MASTEC, INC.
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(the "Parent")
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and its Subsidiaries (other than Excluded Subsidiaries
and members of the MasTec International Group)
listed on Schedule 1 hereto
(collectively, the "Borrowers")
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and
BANKBOSTON, N.A.
("BKB")
and
CREDITANSTALT-BANKVEREIN ("CB"),
FIRST UNION NATIONAL BANK OF FLORIDA ("First Union"),
THE SUMITOMO BANK, LIMITED ("Sumitomo"),
SCOTIABANC INC. ("SBI"),
THE FUJI BANK AND TRUST COMPANY ("Fuji"),
COMERICA BANK ("Comerica"),
and LTCB TRUST COMPANY ("LTCB")
(collectively, the "Banks")
and
BANKBOSTON, N.A., as Agent
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ss.1. DEFINITIONS AND RULES OF INTERPRETATION.................................1
ss.1.1. Definitions. .................................................1
ss.1.2. Rules of Interpretation.......................................16
ss.2. THE REVOLVING CREDIT FACILITY..........................................17
ss.2.1. Commitment to Lend. .........................................17
ss.2.2. Reduction of Total Commitment. ..............................17
ss.2.3. The Revolving Credit Notes; the Swing Line Note. ............18
ss.2.4. Interest on Loans. ..........................................18
ss.2.5. Election of LIBOR Rate; Notice of Election; Interest
Periods; Minimum Amounts....................................19
ss.2.6. Requests for Revolving Credit Loans. ........................20
ss.2.7. Funds for Revolving Credit Loans. ...........................21
ss.2.8. Maturity of the Loans; Annual Option to Extend. .............22
ss.2.9. Mandatory Repayments of the Loans. ..........................23
ss.2.10. Optional Prepayments or Repayments of Loans. ................23
ss.2.11. Swing Line Loans; Settlements.................................23
ss.3. LETTERS OF CREDIT......................................................26
ss.3.1. Letter of Credit Commitments..................................26
ss.3.2. Reimbursement Obligation of the Borrowers. ..................27
ss.3.3. Obligations Absolute. .......................................27
ss.3.4. Reliance by Agent. ..........................................28
ss.4. FEES, PAYMENTS, AND COMPUTATIONS; JOINT AND
SEVERAL LIABILITY....................................................28
ss.4.1. Fees..........................................................28
ss.4.2. Payments......................................................29
ss.4.3. Computations. ...............................................30
ss.4.4. Additional Costs, Etc. ......................................31
ss.4.5. Capital Adequacy. ...........................................32
ss.4.6. Certificate. ................................................33
ss.4.7. Reasonable Efforts to Mitigate. .............................33
ss.4.8. LIBOR Indemnity. ............................................33
ss.4.9. Interest on Overdue Amounts. ................................34
ss.4.10. Interest Limitation. ........................................34
ss.4.11. Illegality; Inability to Determine LIBOR Rate. ..............35
ss.4.12. Concerning Joint and Several Liability of the
Borrowers...................................................35
ss.4.13. New Borrowers. ..............................................38
ss.4.14. Replacement of Banks. .......................................38
ss.5. REPRESENTATIONS AND WARRANTIES. ......................................39
ss.5.1. Corporate Authority...........................................39
ss.5.2. Governmental Approvals. .....................................40
ss.5.3. Title to Properties; Leases .................................41
ss.5.4. Financial Statements; Solvency................................41
ss.5.5. No Material Changes, Etc. ...................................42
ss.5.6. Permits, Franchises, Patents, Copyrights, Etc. ..............42
ss.5.7. Litigation. .................................................42
ss.5.8. No Materially Adverse Contracts, Etc. .......................42
ss.5.9. Compliance With Other Instruments, Laws, Etc. ...............43
ss.5.10. Tax Status. .................................................43
ss.5.11. No Event of Default. ........................................43
ss.5.12. Holding Company and Investment Company Acts. ................43
ss.5.13. Absence of Financing Statements, Etc. .......................44
ss.5.14. Employee Benefit Plans........................................44
ss.5.15. Use of Proceeds. ............................................45
ss.5.16. Environmental Compliance. ...................................45
ss.5.17. Perfection of Security Interests. ...........................47
ss.5.18. Certain Transactions. .......................................47
ss.5.19. Subsidiaries. ...............................................48
ss.5.20. True Copies of Charter and Other Documents. .................48
ss.6. AFFIRMATIVE COVENANTS OF THE BORROWERS. ..............................48
ss.6.1. Punctual Payment. ...........................................48
ss.6.2. Maintenance of Office. ......................................48
ss.6.3. Records and Accounts. .......................................49
ss.6.4. Financial Statements, Certificates and Information. .........49
ss.6.5. Corporate Existence and Conduct of Business. ................51
ss.6.6. Maintenance of Properties. ..................................51
ss.6.7. Insurance. ..................................................52
ss.6.8. Taxes. ......................................................52
ss.6.9. Inspection of Properties, Books, and Contracts. .............53
ss.6.10. Compliance with Laws, Contracts, Licenses and Permits;
Maintenance of Material Licenses and Permits. ............53
ss.6.11. ENVIRONMENTAL INDEMNIFICATION. ..............................53
ss.6.12. Further Assurances. .........................................54
ss.6.13. Notice of Potential Claims or Litigation. ...................54
ss.6.14. Notice of Default. ..........................................54
ss.7. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS. .........................54
ss.7.1. Restrictions on Funded Debt. ................................55
ss.7.2. Restrictions on Liens. ......................................55
ss.7.3. Restrictions on Investments. ................................57
ss.7.4. Mergers, Consolidations, Sales. .............................58
ss.7.5. Sale and Leaseback. .........................................59
ss.7.6. Restricted Distributions and Redemptions. ...................60
ss.7.7. Employee Benefit Plans. .....................................60
ss.7.8. Negative Pledges. ...........................................61
ss.7.9. Pledges of Stock of the Sintel Group. .......................61
ss.7.10. Newly-Created Subsidiaries. .................................61
ss.8. FINANCIAL COVENANTS OF THE BORROWERS. ................................61
ss.8.1. Leverage Ratios. ............................................61
ss.8.2. Capital Expenditures. .......................................62
ss.8.3. Interest Coverage Ratio. ....................................62
ss.8.4. Liquidity. ..................................................62
ss.8.5. Profitable Operations. ......................................62
ss.9. CLOSING CONDITIONS. ..................................................62
ss.9.1. Corporate Action. ...........................................62
ss.9.2. Loan Documents, Etc. ........................................62
ss.9.3. Certified Copies of Charter Documents. ......................62
ss.9.4. Incumbency Certificate. .....................................63
ss.9.5. Validity of Liens. ..........................................63
ss.9.6. UCC Search Results. .........................................63
ss.9.7. Certificates of Insurance. ..................................63
ss.9.8. Opinion of Counsel. .........................................63
ss.9.9. Certificate of Financial Condition. .........................64
ss.9.10. Initial Compliance Certificate. .............................64
ss.9.11. Interim Balance Sheets and Income Statements. ...............64
ss.9.12. Payoff Letters. .............................................64
ss.10. CONDITIONS OF ALL LOANS. .............................................65
ss.10.1. Representations True; No Event of Default. .................65
ss.10.2. Performance; No Event of Default. ..........................65
ss.10.3. No Legal Impediment. .......................................65
ss.10.4. Governmental Regulation. ...................................65
ss.10.5. Proceedings and Documents. .................................66
ss.11. COLLATERAL SECURITY. .................................................66
ss.12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION
OF COMMITMENT. .....................................................66
ss.12.1. Events of Default and Acceleration. ........................66
ss.12.2. Termination of Commitments. ................................69
ss.12.3. Remedies. ..................................................70
ss.13. SETOFF. ..............................................................70
ss.14. THE AGENT. ..........................................................71
ss.14.1. Appointment of Agent, Powers and Immunities. ...............71
ss.14.2. Actions By Agent. ..........................................72
ss.14.3. INDEMNIFICATION. ...........................................72
ss.14.4. Reimbursement. .............................................73
ss.14.5. Documents. .................................................73
ss.14.6. Non-Reliance on Agent and Other Banks. .....................74
ss.14.7. Resignation of Agent. ......................................74
ss.14.8. Action by the Banks, Consents, Amendments, Waivers,
Etc. .....................................................75
ss.15. EXPENSES. ............................................................75
ss.16. SURVIVAL OF COVENANTS, ETC. ..........................................76
ss.17. ASSIGNMENT AND PARTICIPATION. ........................................77
ss.18. PARTIES IN INTEREST. .................................................78
ss.19. NOTICES, ETC. ........................................................78
ss.19.1. Notices. ...................................................78
ss.19.2. Deemed Notice. .............................................79
ss.20. MISCELLANEOUS. .......................................................79
ss.21. ENTIRE AGREEMENT, ETC. ...............................................79
ss.22. WAIVER OF JURY TRIAL. ................................................80
ss.23. GOVERNING LAW. .......................................................80
ss.24. SEVERABILITY. ........................................................81
Schedules & Exhibits
Exhibit A Form of Revolving Credit Note
Exhibit B Swing Line Note
Exhibit C Form of Loan and Letter of Credit Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance
Schedule 1 Subsidiaries of the Parent
Schedule 5.7 Litigation
Schedule 5.10 Taxes
Schedule 5.14(b) Employee Benefit Plans
Schedule 5.16 Environmental Matters
Schedule 5.17 Claims on Collateral
Schedule 5.18 Certain Transactions
Schedule 6.7 Insurance
Schedule 7.1(c) Existing Funded Debt
Schedule 7.2(g) Existing Liens
Schedule 7.4 Permitted Dispositions
Schedule 9.11 Interim Balance Sheets and Income Statements
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of June 9, 1997 (the
"Agreement"), by and among (a) MASTEC, INC., a Delaware corporation (the
"Parent"), its Subsidiaries (other than the Excluded Subsidiaries and members of
the MasTec International Group) listed on Schedule 1 hereto (collectively with
the Parent, the "Borrowers"), (b) BANKBOSTON, N.A. ("BKB"), a national banking
association having its principal place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, CREDITANSTALT-BANKVEREIN ("CB"), an Austrian
banking corporation having an xxxxxx xx Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, FIRST UNION NATIONAL BANK OF FLORIDA ("First Union"), a
national banking association having its principal place of business at 000 Xxxxx
Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxx 00000, THE SUMITOMO BANK, LIMITED
("Sumitomo"), a Japanese banking association having an office at One Biscayne
Tower, 0 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, SCOTIABANC
INC. ("SBI"), a wholly-owned subsidiary of The Bank of Nova Scotia, a Canadian
chartered bank, having its principal place of business at 000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, THE FUJI BANK AND TRUST COMPANY
("Fuji"), a New York corporation having its principal place of business at Xxx
Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, COMERICA BANK ("Comerica"), a
Michigan banking corporation having its principal place of business at 000
Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, and LTCB TRUST COMPANY
("LTCB"), a wholly-owned U.S. subsidiary of the Long-Term Credit Bank of Japan,
Ltd. having its principal place of business at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and the other lending institutions which become parties hereto (each a
"Bank" and, collectively, the "Banks"), and (c) BANKBOSTON, N.A., as agent for
the Banks (the "Agent").
ss.1. DEFINITIONS AND RULES OF INTERPRETATION.
ss.1.1. Definitions.
The following terms shall have the meanings set forth in this ss.1 or
elsewhere in the provisions of this Agreement referred to below:
Accounts Receivable. All rights of the Borrowers to payment for goods sold,
leased or otherwise marketed in the ordinary course of business and all rights
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of the Borrowers to payment for services rendered in the ordinary course of
business and all sums of money or other proceeds due thereon pursuant to
transactions with account debtors, except for that portion of the sum of money
or other proceeds due thereon that relate to sales, use or property taxes in
conjunction with such transactions, recorded on books of account in accordance
with GAAP.
Accountants. See ss.6.4(c).
Agent. BKB acting as agent for the Banks.
Agent's Head Office. The Agent's head office is located at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location as the Agent may
designate from time to time.
Agent's Special Counsel. Xxxxxxx, Xxxx & Xxxxx LLP or such other counsel as
may be approved by the Agent. Agreement. This Revolving Credit Agreement,
including the Schedules and Exhibits hereto.
Applicable Commitment Rate. The Applicable Commitment Rate shall be as set
forth in the Pricing Table. The effective date of a change in the Applicable
Commitment Rate shall be the first day after receipt by the Banks of financial
statements delivered pursuant to ss.6.4(a) or (b) hereof which indicate a change
in the Pricing Ratio. If at any time the financial statements required to be
delivered pursuant to ss.6.4(a) or (b) hereof are not delivered within the time
periods specified in such subsections, the Applicable Commitment Rate shall be
0.375%, subject to adjustment upon actual receipt of such financial statements.
Applicable Laws. See ss.6.10.
Applicable LIBOR Margin. The Applicable LIBOR Margin on LIBOR Loans shall
be as set forth in the Pricing Table. Any change in the Applicable LIBOR Margin
shall become effective on the first day of each Interest Period which begins
three (3) or more days after receipt by the Banks of financial statements
delivered pursuant to ss.6.4(a) or (b) hereof which indicate a change in the
Pricing Ratio. If at any time the financial statements required to be delivered
pursuant to ss.6.4(a) or (b) hereof are not delivered within the time periods
specified in such subsections, the Applicable LIBOR Margin shall be 1.50% with
respect to any LIBOR Loan requested on or after the date on which such financial
statements were required to be delivered but before the time of actual receipt
of such financial statements, subject to adjustment upon actual receipt of such
financial statements.
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Applicable L/C Margin. The Applicable L/C Margin on Letters of Credit shall
be as set forth in the Pricing Table. The effective date of a change in the
Applicable L/C Margin shall be the first day after receipt by the Banks of
financial statements delivered pursuant to ss.6.4(a) or (b) hereof which
indicate a change in the Pricing Ratio. If at any time the financial statements
required to be delivered pursuant to ss.6.4(a) or (b) hereof are not delivered
within the time periods specified in such subsections, the Applicable L/C Margin
shall be 1.50% with respect to any Letter of Credit issued after the date on
which such financial statements were required to be delivered but before actual
receipt of such financial statements, subject to adjustment upon actual receipt
of such financial statements.
Applicable Swing Line Rate. The annual rate of interest agreed upon from
time to time by BKB and the Borrowers with respect to Swing Line Loans.
Balance Sheet Date. December 31, 1996.
Bankruptcy Event. Any event of the types described in ss.ss.12.1(h),
12.1(i).
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by the Agent at its head office in Boston, Massachusetts as its
"base rate" (it being understood that such rate is a reference rate and not
necessarily the lowest rate of interest charged by the Agent) or (b) one percent
(1%) above the overnight federal funds effective rate, as published by the Board
of Governors of the Federal Reserve System, as in effect from time to time.
Base Rate Loans. Loans bearing interest calculated by reference to the Base
Rate.
BKB. BankBoston, N.A.
Borrowers. See preamble.
Business Day. Any day on which banking institutions in Boston,
Massachusetts are open for the transaction of banking business.
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Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include (a) any item customarily charged directly to expense or depreciated over
a useful life of twelve (12) months or less in accordance with generally
accepted accounting principles, or (b) any item obtained through an acquisition
permitted by ss.7.4 hereof.
Capital Expenditures. Amounts paid or indebtedness incurred by the
Borrowers in connection with the purchase or lease by the Borrowers of Capital
Assets that would be required to be capitalized and shown on the balance sheet
of such Person in accordance with GAAP.
Capitalized Leases. Leases, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
CERCLA. See definition of Release.
certified. With respect to the financial statements of any Person, such
statements as audited by a firm of independent auditors, whose report expresses
the opinion, without qualification, that such financial statements present
fairly the financial position of such Person.
CFO. See ss.6.4(a).
CLEC. Any competitive (non-monopoly) local exchange carrier, as "local
exchange carrier" is defined in 47 U.S.C. ss.153.
Closing Date. The date on which the conditions precedent set forth in ss.9
are satisfied, as specified in a notice from the Agent.
Code. The Internal Revenue Code of 1986, as amended and in effect from time
to time.
Collateral. The shares of all direct or indirect Subsidiaries of the Parent
that are or are intended to be subject to the security interests created by the
Stock Pledge Agreements.
Commitment. With respect to each Bank, the amount determined by multiplying
such Bank's Commitment Percentage by the Total Commitment specified in ss.2.1
hereof, as the same may be reduced from time to time.
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Commitment Fee. See ss.4.1.
Commitment Percentage. With respect to each Bank, the percentage set forth
beside its name below (subject to adjustment upon any assignments pursuant to
ss.17):
Bank Percentage
BKB 17.6000%
CB 10.4000%
First Union 13.6000%
Sumitomo 10.4000%
SBI 10.4000%
Fuji 10.4000%
Comerica 13.6000%
LTCB 13.6000%
Compliance Certificate. See ss.6.4(e).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrowers or the Parent,
as applicable, consolidated in accordance with GAAP.
Consolidated Earnings Before Interest and Taxes or EBIT. For any period,
the Consolidated Net Income (or Deficit) of the Borrowers determined in
accordance with GAAP, plus (a) interest expense and (b) income taxes, to the
extent that each was deducted in determining Consolidated Net Income (or
Deficit).
Consolidated Earnings Before Interest, Taxes, Depreciation and Amortization
or EBITDA. For any period, EBIT plus (a) depreciation expense, and (b)
amortization expense, to the extent such expenses were deducted in determining
Consolidated Net Income (or Deficit), provided that, for purposes of calculating
the financial covenants pursuant to ss.8.1 hereof, but not the Pricing Ratio,
EBITDA shall be adjusted to include earnings plus interest, income tax,
depreciation and amortization expenses of Borrowers acquired during the prior
twelve months as if acquired on the first day of such period, provided that such
adjustments shall not constitute more than 30% of EBITDA (as so adjusted), and
furthermore that no more than 15% of EBITDA (as so adjusted) shall be
attributable to such acquired Borrowers whose most recent financial statements
have not been audited by an independent accounting firm reasonably satisfactory
to the Agent.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrowers after deduction of all expenses, taxes, and other
proper charges, determined in accordance with GAAP but excluding, (a)
extraordinary income and expenses, and (b) income or expenses derived from
non-Borrowers.
Consolidated Total Interest Expense. For any period, the consolidated
interest expense required to be paid or accrued by the Borrowers during such
period on all Funded Debt of the Borrowers outstanding during all or any part of
such period, including capitalized interest expense for such period.
Consolidated Total Liabilities. All liabilities of the Borrowers determined
on a consolidated basis in accordance with GAAP.
Default. See ss.12.
Disposal (or Disposed). See definition of Release.
Distribution. The declaration or payment of any dividend or distribution on
or in respect of any shares of any class of capital stock, any partnership
interests or any membership interests of any Person, other than dividends or
other distributions payable solely in shares of common or preferred stock,
partnership interests or membership units of such Person, as the case may be;
the purchase, redemption, or other retirement of any shares of any class of
capital stock, partnership interests or membership units of such Person,
directly or indirectly through a Subsidiary or otherwise; the return of equity
capital by any Person to its shareholders, partners or members as such; or any
other distribution on or in respect of any shares of any class of capital stock,
partnership interest or membership unit of such Person.
Dollars or $. Dollars in lawful currency of the United States of America.
Drawdown Date. The date on which any Loan is made or is to be made, and the
date on which any Loan is converted or continued in accordance with ss.2.5.
EBIT. See definition of Consolidated Earnings Before Interest and Taxes.
EBITDA. See definition of Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization.
Eligible Foreign Bank. (a) Any commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development (the "OECD"), or a political subdivision of any such country,
provided that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD; or (b) the central bank of any country which is a member of the OECD.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by any Borrower, other than a
Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.5.16(a).
EPA. See ss.5.16(b).
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with any
Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Event of Default. See ss.12.
Excluded Subsidiaries. The U.S. Subsidiaries of the Parent (other than
members of the MasTec International Group) listed as Excluded Subsidiaries on
Schedule 1 hereto, and any other U.S. Subsidiaries of the Parent acquired or
created after the date hereof which are not required to become Borrowers
pursuant to ss.4.13 hereof.
Extension Date. March 31, 1999 and, thereafter, March 31, 2000.
Fleet Credit Agreement. The Loan and Security Agreement among certain of
the Borrowers and Fleet Financial Corporation dated January 26, 1995, as
amended.
Funded Debt. Collectively, without duplication, whether classified as
indebtedness, an Investment or otherwise on the Borrowers' consolidated balance
sheet (excluding that portion of assets and liabilities of the Parent
attributable to non-Borrowers), (a) all indebtedness for borrowed money, direct
or indirect, (b) all obligations evidenced by notes, bonds, debentures or other
similar debt instruments (including any unpaid reimbursement obligations with
respect to letters of credit), (c) all obligations, liabilities and indebtedness
under Capitalized Leases which correspond to principal, and (d) Guarantees of
the Funded Debt of others referred to in clauses (a) through (c) above.
generally accepted accounting principles or GAAP. (i) When used in ss.8,
whether directly or indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrowers reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrowers adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guarantee. Any obligation, contingent or otherwise, of a Person directly or
indirectly guaranteeing any indebtedness of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such indebtedness (whether arising
by virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the holder of such indebtedness of the payment
thereof or to protect such holder against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any Borrower or any
ERISA Affiliate, the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Hazardous Substances. See ss.5.16(b).
Income Taxes. See ss.4.4.
Interest Period. With respect to each LIBOR Loan:
(a) initially, the period commencing on the date of a conversion from a
Base Rate Loan into a LIBOR Loan or the making of a LIBOR Loan, and ending one
(1), two (2), three (3), or six (6) months thereafter, as the case may be, as
the Borrowers may select; and
(b) thereafter, each subsequent Interest Period shall begin on the last day
of the preceding Interest Period and end one (1), two (2), three (3), or six (6)
months thereafter, as the case may be, as the Borrowers may select;
(c) provided that any Interest Period which would otherwise end on a day
which is not a LIBOR Business Day shall be deemed to end on the next LIBOR
Business Day; provided further that if such next LIBOR Business Day falls in the
next succeeding calendar month, such Interest Period shall be deemed to end on
the preceding LIBOR Business Day; and provided further that no Interest Period
shall extend beyond the Maturity Date.
Interim Balance Sheet Date. March 31, 1997.
International Signatories. MasTec International, Inc. and Sintel.
Investments. All expenditures made and all Funded Debt incurred
(contingently or otherwise) (a) for the acquisition of stock or indebtedness of,
or (b) for loans, advances, capital contributions or transfers of property to,
or (c) in respect of any Guarantees on behalf of, or (d) with respect to
obligations of, any Person. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any Investment represented
by a Guarantee shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (b) there shall be included as an
Investment all interest accrued with respect to Funded Debt constituting an
Investment unless and until such interest is paid; (c) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(including, without limitation, by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Letter of Credit Applications. Letter of Credit Applications in such form
as may be agreed upon by any Borrower and the Agent from time to time which are
entered into pursuant to ss.3 hereof as such Letter of Credit Applications are
amended, varied or supplemented from time to time.
Letter of Credit Fee. See ss.4.1(b).
Letter of Credit Participation. See ss.3.1(b).
Letters of Credit. Standby Letters of Credit issued or to be issued by the
Agent under ss.3 hereof for the account of the Borrowers.
Leverage Ratios. The ratios of Senior Debt to EBITDA and Funded Debt to
EBITDA as set forth in ss.8.1.
LIBOR Business Day. Any Business Day on which dealings in foreign currency
and exchange are carried on among banks in London, England.
LIBOR Loans. Loans bearing interest calculated by reference to the LIBOR
Rate.
LIBOR Rate. For any Interest Period with respect to a LIBOR Loan, the rate
of interest equal to (i) the rate determined by the Agent at which Dollar
deposits for such Interest Period are offered based on information presented on
Telerate Page 3750 as of 11:00 a.m. London time two LIBOR Business Days prior to
the first day of such Interest Period, divided by (ii) a number equal to 1.00
minus the Reserve Rate, if applicable.
Loan and Letter of Credit Request. See ss.2.6.
Loan Documents. This Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, and the Stock Pledge Agreements.
Loans. A borrowing hereunder consisting of one or more loans made by the
Banks or BKB to the Borrowers under the procedures described in ss.2.1 or
ss.2.11 hereof.
Majority Banks. The Banks with sixty-six and two thirds percent (66 2/3%)
of the Total Commitment; provided that, in the event that the Total Commitment
has been terminated, the Majority Banks shall be the Banks holding sixty-six and
two thirds percent (66 2/3%) of the aggregate outstanding principal amount of
the Loans on such date.
MasTec International Group. MasTec International, Inc., a Delaware
corporation, its direct and indirect Subsidiaries, and the Sintel Group.
Maturity Date. June 9, 2000; as the same may be extended pursuant toss.2.8,
but which date shall in no event be later than -------- ---- June 9, 2002.
Maximum Drawing Amount. The maximum aggregate amount from time to time that
the beneficiaries may draw under outstanding Letters of Credit.
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by any Borrower or any ERISA Affiliate.
Notes. Collectively, the Revolving Credit Notes and the Swing Line Note.
Obligations. All indebtedness, obligations and liabilities of the Borrowers
to any of the Banks or the Agent, individually or collectively, existing on the
date of this Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Agreement or any of the other Loan
Documents or in respect of any of the Loans made or Reimbursement Obligations
incurred or any of the Notes, Letter of Credit Applications, Letters of Credit
or other instruments at any time evidencing any thereof.
Parent. MasTec, Inc., a Delaware corporation.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
Permitted Liens. See ss.7.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pricing Ratio. As at the end of any quarter, the ratio of (a) Funded Debt
to (b) EBITDA for the period of four (4) consecutive fiscal quarters then
ending, as set forth on the most recently delivered Compliance Certificate.
Pricing Table:
------------------------------ ------------- -------------- -------------------
Applicable Applicable Applicable
Pricing Ratio LIBOR Margin L/C Margin Commitment Rate
(per annum) (per annum) (per annum)
------------------------------ ------------- -------------- -------------------
less than 1.00:1 0.75% 0.75% 0.250%
------------------------------ ------------- -------------- -------------------
greater than or equal to
1.00:1, but less than 1.50:1 1.00% 1.00% 0.250%
------------------------------ ------------- -------------- -------------------
greater than or equal to
.50:1, but less than 2.00:1 1.25% 1.25% 0.375%
------------------------------ ------------- -------------- -------------------
greater than or equal to 2.00:1 1.50% 1.50% 0.375%
------------------------------ ------------- -------------- -------------------
Qualified Accounts Receivable. The aggregate of the unpaid portions of
Accounts Receivable (net of any credits, rebates, offsets, holdbacks or other
adjustments or commissions payable to third parties that are adjustments to such
Accounts Receivable) (i) that the Borrowers reasonably and in good faith
determine to be collectible; (ii) that are with account debtors that (A) are not
affiliates of the Borrowers, (B) purchased the goods or services giving rise to
the relevant Account Receivable in an arm's length transaction, (C) are not
insolvent or involved in any case or proceeding, whether voluntary or
involuntary, under any bankruptcy, reorganization, arrangement, insolvency,
adjustment of debt, dissolution, liquidation or similar law of any jurisdiction
and (D) are, in the Agent's reasonable judgment, creditworthy; (iii) that are in
payment of obligations that have been fully performed and are not subject to
dispute or any other similar claims that would reduce the cash amount payable
therefor; (iv) that are not subject to any pledge, restriction, security
interest or other lien or encumbrance other than those created by the Loan
Documents; (v) that are not outstanding for more than ninety (90) days (or one
hundred and twenty (120) days in the case of secured CLEC Accounts Receivable
not to exceed $5,000,000 in the aggregate at any time) past the earlier to occur
of (A) the date of the respective invoices therefor and (B) the date of shipment
thereof in the case of goods or the end of the calendar month following the
provision thereof in the case of services; (vi) that are not due from an account
debtor located in Alabama, Minnesota or New Jersey unless the Borrowers (A) have
received a certificate of authority to do business and are in good standing in
such state or (B) have filed a notice of business activities report with the
appropriate office or agency of such state for the current year; (vii) that are
payable in Dollars; and (viii) that are not payable from an office outside of
the United States.
Real Property. All real property heretofore, now, or hereafter owned or
leased by the Borrowers.
Reimbursement Obligation. The Borrowers' obligation to reimburse the Agent
and the Banks on account of any drawing under any Letter of Credit as provided
in ss.3.2.
RCRA. See definition of Release.
Release. Shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
ss.ss.9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed") shall have
the meaning specified in the Resource Conservation and Recovery Act of 1976, 42
U.S.C. ss.ss.6901 et seq. ("RCRA") and regulations promulgated thereunder;
provided, that in the event either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall apply as of
the effective date of such amendment and provided further, to the extent that
the laws of a state wherein the property lies establishes a meaning for
"Release" or "Disposal" which is broader than specified in either CERCLA or
RCRA, such broader meaning shall apply.
Reserve Rate. For any day with respect to a LIBOR Loan, the maximum rate
(expressed as a decimal) at which any lender subject thereto would be required
to maintain reserves under Regulation D of the Board of Governors of the Federal
Reserve System (or any subsequent or similar regulation relating to such reserve
requirements) against "Eurocurrency Liabilities" (as such term is defined in
Regulation D), if such liabilities were outstanding. The Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in the
Reserve Rate.
Revolving Credit Loans. Loans made by the Banks to the Borrowers pursuant
to ss.2.1.
Revolving Credit Notes. The promissory notes of the Borrowers evidencing
the Revolving Credit Loans hereunder, dated as of the date of this Agreement and
in substantially the form of Exhibit A hereto.
Senior Debt. Funded Debt minus Subordinated Debt.
Sintel. Sistemas e Instalaciones de Telecomunicacion, S.A.
Sintel Group. Sintel, Sietel, S.A., Sintelar, S.A., Sintel Peru, S.A. and
any Subsidiary of Sintel.
Sintel Stock Pledge Agreement. The stock pledge agreement and the
International Pledge Documents (defined therein) among the International
Signatories and the Agent for the benefit or in the name of the Banks in form
and substance satisfactory to the Agent.
Stock Pledge Agreements. The U.S. Stock Pledge Agreement and the Sintel
Stock Pledge Agreement.
Subordinated Debt. Indebtedness incurred by the Parent which has been
subordinated to the Obligations; provided that (a) at the time such Subordinated
Debt is incurred, no Default or Event of Default has occurred or would occur
(including under ss.8.1 hereof) as a result of such incurrence, and the Parent
shall have provided the Banks with a calculation of the Leverage Ratios required
by ss.8.1 hereof showing compliance therewith on a pro forma basis taking into
account the incurrence of such Subordinated Debt, and (b) the documentation
evidencing such Subordinated Debt shall have been delivered to the Agent and
shall contain all of the following characteristics: (i) it shall be unsecured,
(ii) it shall bear a market rate of interest, (iii) it shall have an average
weighted maturity of at least seven (7) years, (iv) it shall not require
principal repayments thereof prior to the Maturity Date, (v) it shall have
financial covenants (including covenants relating to incurrence of indebtedness)
which are meaningfully less restrictive than those set forth herein, (vi) it
shall have no restrictions on the Parent's or any of its Subsidiaries' ability
to grant liens securing indebtedness ranking senior to such Subordinated Debt,
(vii) it shall permit the incurrence of senior indebtedness under this Credit
Agreement (and under any refinancings hereof) in a principal amount at least
equal to the Total Commitment hereunder at the time of incurrence of such
Subordinated Debt minus any mandatory or optional reductions thereof plus
$25,000,000, (viii) it may be cross-accelerated with the Obligations and other
senior indebtedness of the Borrowers (but shall not be cross-defaulted except
for payment defaults which the senior lenders have not waived) and may be
accelerated upon bankruptcy, (ix) it shall provide that (A) upon any payment or
distribution of the assets of the Parent or its Subsidiaries (including after
the commencement of a bankruptcy proceeding) of any kind or character, all of
the Obligations (including interest accruing after the commencement of any
bankruptcy proceeding at the rate specified for the applicable Obligation,
whether or not such interest is an allowable claim in any such proceeding) shall
be paid in full prior to any payment being received by the holders of the
Subordinated Debt and (B) until all of the Obligations (including the interest
described in subclause (A) above) are paid in full, any payment or distribution
to which the holders of the Subordinated Debt would be entitled but for the
subordination provisions of the type described in clauses (x) and (xi) hereof
shall be made to the holders of the Obligations, (x) it shall provide that in
the event of a payment default under ss.12.1(a) or (b) hereof, the Parent shall
not be required to pay the principal of, or any interest, fees and all other
amounts payable with respect to the Subordinated Debt until the Obligations have
been paid in full in cash, (xi) it shall provide that in the event of any other
Event of Default, the Banks shall be permitted to block payments of principal,
interest, fees and all other amounts payable with respect to the Subordinated
Debt for a period of 180 days, and (xii) it shall acknowledge that none of the
provisions outlined in part (b) of this definition can be amended, modified or
otherwise altered without the prior written consent of the Banks.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority of the outstanding
capital stock or other interest entitled to vote generally.
Swing Line Loans. Loans made by BKB to the Borrowers pursuant to
ss.2.11(a).
Swing Line Note. The promissory note of the Borrowers to BKB evidencing the
Swing Line Loans hereunder, dated as of the date of this Agreement and in
substantially the form of Exhibit B hereto.
Swing Line Settlement. The making or receiving of payments, in immediately
available funds, by the Banks to or from the Agent in accordance with ss.2.11
hereof to the extent necessary to cause each Bank's actual share of the
outstanding amount of the Loans to be equal to such Bank's Commitment Percentage
of the outstanding amount of such Loans, in any case when, prior to such action,
the actual share is not so equal.
Swing Line Settlement Amount. See ss.2.11(b).
Swing Line Settlement Date. See ss.2.11(b).
Swing Line Settling Bank. See ss.2.11(b).
Total Commitment. See ss.2.1.
U.S. Stock Pledge Agreement. The stock pledge agreement among the Parent,
its U.S. Subsidiaries (other than Excluded Subsidiaries) and the Agent for the
benefit or in the name of the Banks in form and substance satisfactory to the
Agent.
U.S. Subsidiaries. Subsidiaries of the Parent which are organized under the
laws of the United States of America, any state thereof or the District of
Columbia.
ss.1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this
Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined
herein have the meanings assigned to them by generally accepted
accounting principles applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include," "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein.
(h) Reference to a particular "ss." refers to that section of
this Agreement unless otherwise indicated.
(i) The words "herein," "hereof," "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
ss.2. THE REVOLVING CREDIT FACILITY.
ss.2.1. Commitment to Lend. Subject to the terms and conditions set forth
in this Agreement, each of the Banks severally agrees to lend to the Borrowers
and the Borrowers may borrow, repay, and reborrow from time to time commencing
on the Closing Date and prior to the Maturity Date, upon notice by the Borrowers
to the Agent given in accordance with ss.2.6, its Commitment Percentage of such
sums as are requested by the Borrowers, provided that the outstanding amount of
Loans (including the Swing Line Loans) and the Maximum Drawing Amount of the
Letters of Credit shall not exceed a maximum aggregate amount outstanding of
$125,000,000 at any time, as such amount may be reduced pursuant to ss.2.2
hereof (the "Total Commitment"). Each request for a Loan or Letter of Credit
hereunder shall constitute a representation and warranty by the Borrowers that
the conditions set forth in ss.9 and ss.10, as the case may be, have been
satisfied on the date of such request.
ss.2.2. Reduction of Total Commitment.
(a) The Borrowers shall have the right at any time and from
time to time upon two (2) Business Days' prior written notice to the
Agent to reduce by $10,000,000 or an integral multiple thereof or
terminate entirely the Total Commitment, whereupon the Commitments of
the Banks shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as
the case may be, terminated. The Agent will notify the Banks promptly
after receiving any notice of the Borrowers delivered pursuant to this
ss.2.2. Notwithstanding the foregoing, at no time may the Total
Commitment be reduced to an amount less than the sum of (i) the Maximum
Drawing Amount, and (ii) all Loans then outstanding.
(b) No reduction or termination of the Commitments once made
may be revoked; the portion of the Commitments reduced or terminated
may not be reinstated; and amounts in respect of such reduced or
terminated portion may not be reborrowed.
ss.2.3. The Revolving Credit Notes; the Swing Line Note.
(a) The Revolving Credit Loans shall be evidenced by separate
promissory notes of the Borrowers in substantially the form of Exhibit
A hereto (each a "Revolving Credit Note"), dated as of the date hereof.
One Revolving Credit Note shall be payable to the order of each Bank in
a principal amount equal to such Bank's Commitment or, if less, the
outstanding amount of all Revolving Credit Loans made by such Bank,
plus interest accrued thereon, as set forth herein.
(b) The Swing Line Loans shall be evidenced by a promissory
note of the Borrowers in substantially the form of Exhibit B hereto
(the "Swing Line Note"), dated as of the date hereof. The Swing Line
Note shall be payable to BKB in the principal amount of $5,000,000 or,
if less, the outstanding amount of all Swing Line Loans made by BKB,
plus interest accrued thereon, as set forth xxxxx.
(c) The Borrowers irrevocably authorize each Bank to make or
cause to be made, in connection with a Drawdown Date of any Loan, or at
the time of receipt of any payment of principal on such Bank's Note(s),
an appropriate notation on such Bank's records reflecting the making of
such Loan or the receipt of such payment (as the case may be). The
outstanding amount of the Loans set forth on such Bank's record shall
be prima facie evidence of the principal amount thereof owing and
unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount shall not limit or otherwise affect the
obligations of the Borrowers hereunder or under any Note to make
payments of principal of or interest on any Note when due.
ss.2.4. Interest on Loans.
(a) The outstanding principal amount of the Revolving Credit
Loans shall bear interest at the rate per annum equal to (i) the Base
Rate, or (ii) at the Borrowers' option as provided herein, the LIBOR
Rate plus the Applicable LIBOR Margin.
(b) The outstanding principal amount of the Swing Line Loans
shall bear interest at the rate per annum equal to the Applicable Swing
Line Rate.
(c) Interest shall be payable (i) quarterly in arrears on the
first Business Day of the next succeeding quarter, commencing July 1,
1997, on Base Rate Loans and Swing Line Loans, (ii) on the last day of
the applicable Interest Period, and if such Interest Period is longer
than three (3) months, also on the last day of the third month
following the commencement of such Interest Period, on LIBOR Loans, and
(iii) on the Maturity Date for all Loans.
ss.2.5. Election of LIBOR Rate; Notice of Election; Interest Periods;
Minimum Amounts.
(a) At the Borrowers' option, so long as no Default or Event
of Default has occurred and is then continuing, the Borrowers may (i)
elect to convert any Revolving Credit Loan or a portion thereof from a
Base Rate Loan to a LIBOR Loan, (ii) at the time of any Loan and Letter
of Credit Request, specify that such requested Revolving Credit Loan
shall be a LIBOR Loan, or (iii) upon expiration of the applicable
Interest Period, elect to maintain an existing LIBOR Loan as such,
provided that the Borrowers give notice to the Agent pursuant to
ss.2.5(b) hereof. Upon determining any LIBOR Rate, the Agent shall
forthwith provide notice thereof to the Borrowers and the Banks, and
each such notice to the Borrowers and the Banks shall be considered
prima facie correct and binding, absent manifest error.
(b) Three (3) LIBOR Business Days prior to the making of any
LIBOR Loan or the conversion of any Base Rate Loan to a LIBOR Loan, or,
in the case of an outstanding LIBOR Loan, the expiration date of the
applicable Interest Period, the Borrowers shall give telephonic notice
(confirmed by telecopy on the same LIBOR Business Day) to the Agent not
later than 11:00 a.m. (Boston time) of its election pursuant to
ss.2.5(a). Each such notice delivered to the Agent shall specify the
aggregate principal amount of the Revolving Credit Loans to be borrowed
or maintained as or converted to LIBOR Loans and the requested duration
of the Interest Period that will be applicable to such LIBOR Loan, and
shall be irrevocable and binding upon the Borrowers. If the Borrowers
shall fail to give the Agent notice of their election hereunder
together with all of the other information required by this ss.2.5(b)
with respect to any Revolving Credit Loan, such Loan shall be deemed a
Base Rate Loan. In the event that the Borrowers fail to provide any
such notice with respect to the continuation of any LIBOR Loan as such,
then such LIBOR Loan shall be automatically converted to a Base Rate
Loan at the end of the then expiring Interest Period relating thereto.
(c) Notwithstanding anything herein to the contrary, the
Borrowers may not specify an Interest Period that would extend beyond
the Maturity Date.
(d) All Revolving Credit Loans shall be in a minimum
amount of not less than $5,000,000 and in integral multiples of
$500,000 above such amount.
(e) In no event shall the Borrowers have more than seven
(7) different maturities of LIBOR Loans outstanding at any time.
ss.2.6. Requests for Revolving Credit Loans. The Borrowers shall give to
the Agent written notice in the form of Exhibit C hereto (or telephonic notice
confirmed by telecopy on the same Business Day in the form of Exhibit C hereto)
of each Revolving Credit Loan requested hereunder (a "Loan and Letter of Credit
Request") not later than (a) 9:00 a.m. (Boston time) on the proposed Drawdown
Date of any Base Rate Loan, or (b) three (3) LIBOR Business Days prior to the
proposed Drawdown Date of any LIBOR Loan. Each such notice shall be given by the
Parent as agent for the Borrowers and shall specify the principal amount of the
Revolving Credit Loan requested and shall include a current Loan and Letter of
Credit Request, reflecting the Maximum Drawing Amount of all Letters of Credit
outstanding. Each Loan and Letter of Credit Request shall be irrevocable and
binding on the Borrowers and shall obligate the Borrowers to accept the
Revolving Credit Loan requested from the Banks on the proposed Drawdown Date.
Each of the representations and warranties made by or on behalf of any of the
Borrowers to the Banks or the Agent in this Agreement or any other Loan Document
shall be true and correct in all material respects when made and shall, for all
purposes of this Agreement, be deemed to be repeated on and as of the date of
the submission of any Loan and Letter of Credit Request and on and as of the
Drawdown Date of any Loan (including Swing Line Loans) or the date of issuance
or renewal of any Letter of Credit (except to the extent of changes resulting
from transactions contemplated or permitted by this Agreement and the other Loan
Documents and changes occurring in the ordinary course of business that do not
in the aggregate have a material adverse effect on the Borrowers taken as a
whole, or to the extent that such representations and warranties expressly
relate to an earlier date). The Agent shall promptly notify each Bank of each
Loan and Letter of Credit Request received by the Agent (i) not later than 12:00
p.m. (Boston time) on the proposed Drawdown Date of any Base Rate Loan, (ii)
three (3) LIBOR Business Days prior to the proposed Drawdown Date of any LIBOR
Loan to be made to the Borrowers. or (iii) on a monthly basis with respect to
Letters of Credit.
ss.2.7. Funds for Revolving Credit Loans.
(a) Not later than 1:00 p.m. (Boston time) on the proposed
Drawdown Date of any Revolving Credit Loans, each of the Banks will
make available to the Agent, at its Head Office, in immediately
available funds, the amount of such Bank's Commitment Percentage of the
amount of the requested Revolving Credit Loans. Upon receipt from each
Bank of such amount, and upon receipt of the documents required by
ss.ss.9 and 10 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make available to the
Borrowers the aggregate amount of such Revolving Credit Loans made
available to the Agent by the Banks on the Drawdown Date. The failure
or refusal of any Bank to make available to the Agent at the aforesaid
time and place on any Drawdown Date the amount of its Commitment
Percentage of the requested Revolving Credit Loans shall not relieve
any other Bank from its several obligation hereunder to make available
to the Agent the amount of such other Bank's Commitment Percentage of
any requested Revolving Credit Loans.
(b) The Agent may, unless notified to the contrary by any Bank
prior to a Drawdown Date, assume that such Bank has made available to
the Agent on such Drawdown Date the amount of such Bank's Commitment
Percentage of the Revolving Credit Loans to be made on such Drawdown
Date, and the Agent may (but it shall not be required to), in reliance
upon such assumption, make available to the Borrowers a corresponding
amount. If any Bank makes available to the Agent such amount on a date
after such Drawdown Date, such Bank shall pay to the Agent on demand an
amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest
rate paid by the Agent for federal funds acquired by the Agent during
each day included in such period, times (ii) the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans, times (iii) a
fraction, the numerator of which is the number of days that elapse from
and including such Drawdown Date to the date on which the amount of
such Bank's Commitment Percentage of such Revolving Credit Loans shall
become immediately available to the Agent, and the denominator of which
is 365. A statement of the Agent submitted to such Bank with respect to
any amounts owing under this paragraph shall be prima facie evidence,
absent manifest error, of the amount due and owing to the Agent by such
Bank. If the amount of such Bank's Commitment Percentage of such
Revolving Credit Loans is not made available to the Agent by such Bank
within three (3) Business Days following such Drawdown Date, the Agent
shall be entitled to recover such amount from the Borrowers on demand,
with interest thereon at the rate per annum applicable to the Revolving
Credit Loans made on such Drawdown Date.
ss.2.8. Maturity of the Loans; Annual Option to Extend. The Total
Commitment shall terminate and all Loans shall be due and payable on the
Maturity Date; provided, however, that such Total Commitment and Maturity Date
may be extended for successive annual periods up to a final Maturity Date of
June 9, 2002, as provided in this ss.2.8 and at each Bank's sole discretion,
upon the written request of the Borrowers. A written request, if any, for the
extension of the Total Commitment and Maturity Date shall be given by the
Borrowers to the Agent and the Banks not less than one-hundred twenty (120) days
prior to the Extension Date. Except as expressly provided in this ss.2.8, no
extension of the Total Commitment and then current Maturity Date pursuant to
this ss.2.8 shall be effective unless all of the Banks shall have approved such
extension by written notice to the Agent. If on or prior to ninety (90) days
prior to the applicable Extension Date, all of the Banks consent to such
extension by written notice to the Agent, the Total Commitment and Maturity Date
automatically shall be extended to that date which is one year later than the
then current Maturity Date. If on or prior to ninety (90) days prior to the
applicable Extension Date, any Bank (a "Declining Bank") shall have objected to
such requested extension by written notice to the Agent or shall not have
delivered written notice to the Agent consenting to such requested extension,
then the Borrowers or the Agent may, no later than such Extension Date, replace
each such Declining Bank if necessary so that, as of such Extension Date, the
Total Commitment is not less than $100,000,000. In no event shall the Maturity
Date be extended beyond June 9, 2002; nor shall the Total Commitment of such
extended facility be less than $100,000,000.
ss.2.9. Mandatory Repayments of the Loans. If at any time the outstanding
amount of the Loans plus the Maximum Drawing Amount of all outstanding Letters
of Credit exceeds the Total Commitment, whether by reduction of the Total
Commitment or otherwise, then the Borrowers shall immediately pay the amount of
such excess to the Agent for application to the Loans, or if no Loans shall be
outstanding, to be held by the Agent as collateral security for the
Reimbursement Obligations, provided, however, that if the amount of cash
collateral held by the Agent pursuant to this ss.2.9 exceeds the amount of the
Obligations, the Agent shall return such excess to the Borrowers.
ss.2.10. Optional Prepayments or Repayments of Loans. Subject to ss.4.8,
the Borrowers shall have the right, at their election, to repay or prepay the
outstanding amount of the Loans, as a whole or in part, at any time without
penalty or premium, provided that such repayments or prepayments shall be in a
minimum amount of not less than $5,000,000 and in integral multiples of $500,000
above such amount. The Borrowers shall give the Agent, no later than 11:00 a.m.
(Boston time) on the Business Day of such proposed prepayment or repayment,
written notice (or telephonic notice confirmed in writing) of any proposed
prepayment or repayment pursuant to this ss.2.10, specifying the proposed date
of prepayment or repayment of Loans and the principal amount to be paid.
ss.2.11. Swing Line Loans; Settlements.
(a) Solely for ease of administration of the Loans, BKB may,
but shall not be required to, fund Base Rate Loans made in accordance
with the provisions of this Agreement in amounts less than $5,000,000
("Swing Line Loans") provided that the outstanding amount of Swing Line
Loans advanced by BKB hereunder shall not exceed $5,000,000 at any
time. Each Bank shall remain severally and unconditionally liable to
fund its Commitment Percentage of such Swing Line Loans on each Swing
Line Settlement Date and, in the event BKB chooses not to fund all Base
Rate Loans requested on any date, to fund its Commitment Percentage of
the Base Rate Loans requested, subject to satisfaction of the
provisions hereof relating to the making of Base Rate Loans. Prior to
each Swing Line Settlement, all payments or repayments of the principal
of, and interest on, Swing Line Loans shall be credited to the account
of BKB.
(b) The Banks shall effect a Swing Line Settlement of each
Swing Line Loan on (i) the Business Day immediately following any day
on which the Agent gives notice of a Swing Line Settlement, (ii) the
Business Day immediately following the Agent's becoming aware of the
existence of any Default or Event of Default, (iii) the Maturity Date,
and (iv) the Business Day immediately following any day on which the
outstanding amount of Swing Line Loans advanced by BKB exceeds
$5,000,000 (each such date, a "Swing Line Settlement Date"). One (1)
Business Day prior to each such Swing Line Settlement Date, the Agent
shall give telephonic notice to the Banks of (A) the respective
outstanding amount of Loans made by each Bank as at the close of
business on the prior day, (B) the amount that any Bank, as applicable
(a "Swing Line Settling Bank"), shall pay to effect a Swing Line
Settlement (a "Swing Line Settlement Amount") and (C) the portion (if
any) of the aggregate Swing Line Settlement Amount to be paid to each
Bank. A statement of the Agent submitted to the Banks with respect to
any amounts owing hereunder shall be prima facie evidence of the amount
due and owing. Each Swing Line Settling Bank shall, not later than 1:00
p.m. (Boston time) on each Swing Line Settlement Date, effect a wire
transfer of immediately available funds to the Agent at its Head Office
in the amount of such Bank's Swing Line Settlement Amount. The Agent
shall, as promptly as practicable during normal business hours on each
Swing Line Settlement Date, effect a wire transfer of immediately
available funds to each Bank of the Swing Line Settlement Amount to be
paid to such Bank. All funds advanced by any Bank as a Swing Line
Settling Bank pursuant to this ss.2.11(b) shall for all purposes be
treated as a Base Rate Loan made by such Swing Line Settling Bank to
the Borrowers, and all funds received by any Bank pursuant to this
ss.2.11(b) shall for all purposes be treated as repayment of amounts
owed by the Borrowers with respect to Base Rate Loans made by such
Bank. In the event that any Bankruptcy Event prevents a Swing Line
Settling Bank from making any Swing Line Settlement as contemplated
hereby, such Swing Line Settling Bank will make such dispositions and
arrangements, either by way of purchase of participations,
distribution, pro tanto assignment of claims, subrogation or otherwise
as shall result in each Bank's share of the outstanding Revolving
Credit Loans being equal, as nearly as may be, to such Bank's
Commitment Percentage of the outstanding amount of the Revolving Credit
Loans.
(c) The Agent may (unless notified to the contrary by any
Swing Line Settling Bank by 12:00 noon (Boston time) one (1) Business
Day prior to the Settlement Date) assume that each Swing Line Settling
Bank has made available (or will make available by the time specified
in ss.2.11(b)) to the Agent its Swing Line Settlement Amount, and the
Agent may (but shall not be required to), in reliance upon such
assumption, make available to each applicable Bank its share (if any)
of the aggregate Swing Line Settlement Amount. If the Swing Line
Settlement Amount of such Swing Line Settling Bank is made available to
the Agent by such Swing Line Settling Bank on a date after such Swing
Line Settlement Date, such Swing Line Settling Bank shall pay the Agent
on demand an amount equal to the product of (i) the average, computed
for the period referred to in clause (iii) below, of the weighted
average annual interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period times
(ii) such Swing Line Settlement Amount times (iii) a fraction, the
numerator of which is the number of days that elapse from and including
such Swing Line Settlement Date to but not including the date on which
such Swing Line Settlement Amount shall become immediately available to
the Agent, and the denominator of which is 365. Upon payment of such
amount such Swing Line Settling Bank shall be deemed to have delivered
its Swing Line Settlement Amount on the Swing Line Settlement Date and
shall become entitled to interest payable by the Borrowers with respect
to such Swing Line Settling Bank's Swing Line Settlement Amount as if
such share were delivered on the Swing Line Settlement Date. If such
Swing Line Settlement Amount is not in fact made available to the Agent
by such Swing Line Settling Bank within three (3) Business Days of such
Swing Line Settlement Date, the Agent shall be entitled to recover such
amount from the Borrowers, with interest thereon at the Base Rate.
(d) After any Swing Line Settlement Date, any payment by the
Borrowers of Swing Line Loans hereunder shall be allocated among the
Banks, in amounts determined so as to provide that after such
application and the related Swing Line Settlement, the outstanding
amount of Loans of each Bank equals, as nearly as practicable, such
Bank's Commitment Percentage of the aggregate amount of Loans.
ss.3. LETTERS OF CREDIT.
ss.3.1. Letter of Credit Commitments.
(a) Subject to the terms and conditions hereof and the
execution and receipt of a Loan and Letter of Credit Request reflecting
the Maximum Drawing Amount of all Letters of Credit (including the
requested Letter of Credit) and a Letter of Credit Application, the
Agent, on behalf of the Banks and in reliance upon the agreement of the
Banks set forth in ss.3.1(b) and upon the representations and
warranties of the Borrowers contained herein, subject to the provisions
of ss.ss.2.6 and 19.2 hereof, agrees to issue, extend and renew for the
account of the Borrowers one or more standby or documentary letters of
credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrowers and agreed to by the
Agent; provided, however, that, after giving effect to such request,
the aggregate Maximum Drawing Amount of all Letters of Credit issued at
any time under this ss.3.1(a) shall not exceed $10,000,000, and no
Letter of Credit shall have an expiration date later than the earlier
of (i) one (1) year after the date of issuance of the Letter of Credit
(which may incorporate automatic renewals for periods of up to one (1)
year, provided that the Agent may, upon 30 days' notice to the
beneficiary, cancel such Letter of Credit which has been renewed beyond
its initial one (1) year term), or (ii) thirty (30) days prior to the
Maturity Date.
(b) Each Bank severally agrees that it shall be absolutely
liable, without regard to the occurrence of any Default or Event of
Default or any other condition precedent whatsoever, to the extent of
such Bank's Commitment Percentage thereof, to reimburse the Agent on
demand for the amount of each draft paid by the Agent under each Letter
of Credit to the extent that such amount is not reimbursed by the
Borrowers pursuant to ss.3.2 (such agreement for a Bank being called
herein the "Letter of Credit Participation" of such Bank).
(c) Each such payment made by a Bank shall be treated as the
purchase by such Bank of a participating interest in the Borrowers'
Reimbursement Obligation under ss.3.2 in an amount equal to such
payment. Each Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to ss.3.2.
ss.3.2. Reimbursement Obligation of the Borrowers. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrowers hereby agree to reimburse or pay to the Agent
with respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder as follows:
(a) on each date that any draft presented under any Letter of
Credit is honored by the Agent or the Agent otherwise makes payment
with respect thereto, (i) the amount paid by the Agent under or with
respect to such Letter of Credit, and (ii) the amount of any taxes,
fees, charges or other costs and expenses whatsoever incurred by the
Agent or any Bank in connection with any payment made by the Agent or
any Bank under, or with respect to, such Letter of Credit, provided,
however, that if the Borrowers do not reimburse the Agent on the date
the Agent makes payment with respect to such Letter of Credit, such
amount shall, provided that a Bankruptcy Event has not occurred, become
automatically a Revolving Credit Loan which is a Base Rate Loan; and
(b) upon the Maturity Date or the acceleration of the
Reimbursement Obligations with respect to all Letters of Credit in
accordance with ss.12, an amount equal to the then Maximum Drawing
Amount of all Letters of Credit and any unpaid Reimbursement
Obligations, which amount shall be held by the Agent for the benefit of
the Banks and the Agent as cash collateral for all Reimbursement
Obligations, provided, however, that if the amount of cash collateral
held by the Agent pursuant to this ss.3.2 exceeds the amount of the
Obligations, the Agent shall return such excess to the Borrowers.
ss.3.3. Obligations Absolute. The Borrowers' obligations under this ss.3
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrowers may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrowers further agree with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrowers' Reimbursement Obligations under ss.3.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrowers, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrowers against the beneficiary of
any Letter of Credit or any such transferee. The Agent and the Banks shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. The Borrowers agree that any action taken
or omitted by the Agent or any Bank under or in connection with each Letter of
Credit and the related drafts and documents, if done in good faith, shall be
binding upon the Borrowers and shall not result in any liability on the part of
the Agent or any Bank to the Borrowers.
ss.3.4. Reliance by Agent. To the extent not inconsistent with ss.3.4, the
Agent shall be entitled to rely, and shall be fully protected in relying upon,
any Letter of Credit, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other
experts selected by the Agent.
ss.4. FEES, PAYMENTS, AND COMPUTATIONS; JOINT AND SEVERAL LIABILITY.
ss.4.1. Fees.
(a) Commitment Fee. The Borrowers agree to pay to the Agent,
for the accounts of the Banks, a fee (the "Commitment Fee") equal to
the Applicable Commitment Rate multiplied by the amount of the unused
portion of the Total Commitment during each calendar quarter or portion
thereof from the date hereof to the Maturity Date (or to the date of
termination in full of the Total Commitment, if earlier). The
Commitment Fee shall be payable quarterly in arrears on the first day
of each calendar quarter for the immediately preceding calendar quarter
commencing on July 1, 1997, with a final payment on the Maturity Date.
(b) Letter of Credit Fees. The Borrowers shall pay in advance
on the date of issuance of each Letter of Credit an issuance fee to the
Agent for its account equal to one eighth of one percent (1/8%) per
annum on the Maximum Drawing Amount of each Letter of Credit (the
"Issuance Fee"). The Borrowers shall also pay quarterly in advance on
the first Business Day of each fiscal quarter a fee to the Agent equal
to the Applicable L/C Margin multiplied by the Maximum Drawing Amount
of all outstanding Letters of Credit (the "Letter of Credit Fee"),
which fee shall be for the accounts of the Banks in accordance with
their respective Commitment Percentages. In addition to the Issuance
Fee and the Letter of Credit Fee, the Borrowers shall pay to the Agent,
for its own account, all related customary administrative fees in
accordance with customary practice.
ss.4.2. Payments.
(a) All payments of principal, interest, Reimbursement
Obligations, fees and any other amounts due hereunder or under any of
the other Loan Documents shall be made to the Agent, for the respective
accounts of the Banks and the Agent, to be received at the Agent's Head
Office in immediately available funds by 12:00 p.m. (Boston time) on
any due date. If a payment (other than with respect to Swing Line
Loans) is received by the Agent at or before 12:00 p.m. (Boston time)
on any Business Day, the Agent shall on the same Business Day transfer
in immediately available funds to each of the Banks their pro rata
portion of such payment in accordance with their respective Commitment
Percentages. If such payment is received by the Agent after 12:00 p.m.
(Boston time) on any Business Day, such transfer shall be made by the
Agent to the applicable Bank(s) on the next Business Day. In the event
that the Agent fails to make such transfer to any Bank as set forth
above, the Agent shall pay to such Bank on demand an amount equal to
the product of (i) the average, computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by such
Bank for funds acquired by such Bank during each day included in such
period, times (ii) the amount equal to such Bank's Commitment
Percentage of such payment, times (iii) a fraction, the numerator of
which is the number of days that elapse from and including the date of
payment to and including the date on which the amount due to such Bank
shall become immediately available to such Bank, and the denominator of
which is 365.
(b) All payments by the Borrowers hereunder and under any of
the other Loan Documents shall be made without setoff or counterclaim
and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political subdivision
thereof or taxing or other authority therein unless the Borrowers are
compelled by law to make such deduction or withholding. If any such
obligation is imposed upon the Borrowers with respect to any amount
payable by them hereunder or under any of the other Loan Documents, the
Borrowers will pay to the Agent, for the account of the Banks or (as
the case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Banks or the
Agent to receive the same net amount which the Banks or the Agent would
have received on such due date had no such obligation been imposed upon
the Borrowers, provided however that the foregoing obligation to pay
such additional amounts shall not apply:
(i) to any payment to a Bank if such Bank is not, on
the date hereof (or on the date it becomes a Bank under this
Agreement) and on the date of any change in the lending office
of such Bank identified after its execution, entitled by
virtue of its status as a non-resident alien to submit either
a Form 1001 (relating to such Bank and entitling it to a
complete exemption from withholding on all interest to be
received by it hereunder in respect of the Revolving Credit
Loans) or Form 4224 (relating to all interest to be received
by such Bank hereunder in respect of Revolving Credit Loans)
of the U.S. Department of Treasury, or
(ii) to any item referred to in the preceding
sentence that would not have been imposed but for the failure
by such Bank to comply with applicable certification,
information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections
of such Bank with the United States if such compliance is
required by statute or regulation of the United States as a
precondition to relief or exemption from such item.
The Borrowers will deliver promptly to the Agent certificates
or other valid vouchers for all taxes or other charges deducted from or
paid with respect to payments made by the Borrowers hereunder or under
such other Loan Document.
ss.4.3. Computations. All computations of interest on Base Rate Loans and
of Commitment Fees, Letter of Credit Fees or other fees shall, unless otherwise
expressly provided herein, be based on a 365-day year (or 366-day year, as
applicable) and paid for the actual number of days elapsed. All computations of
interest on LIBOR Loans shall, unless otherwise expressly provided herein, be
based on a 360-day year and paid for the actual number of days elapsed. Whenever
a payment hereunder or under any of the other Loan Documents becomes due on a
day that is not a Business Day or LIBOR Business Day (as applicable), the due
date for such payment shall be extended to the next succeeding Business Day or
LIBOR Business Day (as applicable), and interest shall accrue during such
extension; provided that, for any Interest Period for any LIBOR Loan, if such
next succeeding LIBOR Business Day falls in the next succeeding calendar month
or after the Maturity Date, it shall be deemed to end on the preceding LIBOR
Business Day.
ss.4.4. Additional Costs, Etc. If, after the date hereof, any change in
present applicable law or adoption of any applicable law after the date hereof
(including, in either case, without limitation, statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank by any central bank or other fiscal, monetary or
other authority, whether or not having the force of law) shall:
(a) subject such Bank to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, such Bank's Commitment, or the
Loans (other than taxes based upon or measured by the income or profits
of such Bank or any franchise tax imposed by the jurisdiction of its
incorporation or organization, or the location of its lending office,
hereinafter referred to as "Income Taxes"); or
(b) materially change the basis of taxation (except for
changes in Income Taxes) of payments to such Bank of the principal or
of the interest on any Loans or any other amounts payable to such Bank
under this Agreement or the other Loan Documents; or
(c) except as provided in ss.4.5 or as otherwise reflected in
the Base Rate or the LIBOR Rate, impose or increase or render
applicable (other than to the extent specifically provided for
elsewhere in this Agreement) any special deposit, reserve, assessment,
liquidity, capital adequacy or other similar requirements (whether or
not having the force of law) against assets held by, or deposits in or
for the account of, or loans by, or commitments of, an office of any
Bank with respect to this Agreement, the other Loan Documents, the
Commitment, or the Loans; or
(d) impose on such Bank any other conditions or requirements
with respect to this Agreement, the other Loan Documents, the Loans,
such Bank's Commitment, or any class of loans or commitments of which
any of the Loans or such Bank's Commitment forms a part, and the result
of any of the foregoing is
(i) to increase the cost to such Bank of making,
funding, issuing, renewing, extending or maintaining the Loans
or such Bank's Commitment, or issuing or participating in
Letters of Credit;
(ii) to reduce the amount of principal, interest or
other amount payable to such Bank hereunder on account of such
Bank's Commitment or the Loans;
(iii) to require such Bank to make any payment or to
forego any interest or other sum payable hereunder, the amount
of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by such Bank from the Borrower
hereunder,
then,and in each such case, the Borrowers will, upon demand made by such
Bank at any time and from time to time as often as the occasion therefore may
arise (which demand shall be accompanied by a statement setting forth the basis
of such demand), pay such reasonable additional amounts as will be sufficient to
compensate such Bank for such additional costs, reduction, payment or foregone
interest or other sum.
ss.4.5. Capital Adequacy. If any Bank shall have determined that, after the
date hereof, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change in any such 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 any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or any corporation controlling such Bank) as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank (or any corporation controlling such Bank) could have achieved but for
such adoption, change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, within thirty (30) days after demand by
such Bank (which demand shall be accompanied by a statement setting forth the
basis of such demand), the Borrower shall pay to such Bank such additional
amount or amounts as will, in such Bank's reasonable determination, fairly
compensate such Bank (or any corporation controlling such Bank) for such
reduction.
ss.4.6. Certificate.
A certificate setting forth any additional amounts payable pursuant to
ss.ss.4.4 or 4.5 and a reasonable explanation of such amounts which are due,
submitted by any Bank or the Agent to the Borrowers, shall be prima facie
correct and binding, absent manifest error.
ss.4.7. Reasonable Efforts to Mitigate. Each Bank agrees that as promptly
as practicable after it becomes aware of the occurrence of an event or the
existence of a condition that would cause it to be affected under ss.ss.4.4, 4.5
or 4.11, such Bank will give notice thereof to the Borrower, with a copy to the
Agent, and, to the extent so requested by the Borrower and not inconsistent with
such Bank's internal policies, such Bank shall use reasonable efforts and take
such actions as are reasonably appropriate if as a result thereof the additional
moneys which would otherwise be required to be paid to such Bank pursuant to
such subsections would be materially reduced, or the illegality or other adverse
circumstances which would otherwise require a conversion of such Loans or result
in the inability to make such Loans pursuant to such sections would cease to
exist, and in each case if, as determined by such Bank in its sole discretion,
the taking such actions would not adversely affect such Loans or such Bank or
otherwise be disadvantageous to such Bank. To the extent practicable and
applicable, each Bank shall allocate such cost increases among its customers in
good faith and on an equitable basis.
ss.4.8. LIBOR Indemnity. The Borrowers agree to indemnify the Banks and the
Agent and to hold them harmless from and against any loss, cost or expenses
(including loss of anticipated profits) that the Banks and the Agent may sustain
or incur as a consequence of (a) default by the Borrowers in payment of the
principal amount of or any interest on any LIBOR Loans as and when due and
payable, including any such loss or expense arising from interest or fees
payable by any Bank or the Agent to lenders of funds obtained by it in order to
maintain its LIBOR Loans, or (b) default by the Borrowers in making a borrowing
or conversion after the Borrowers have given (or are deemed to have given)
notice pursuant to ss.2.5 or ss.2.6, the making of any payment of a LIBOR Loan
or the making of any conversion of any such LIBOR Loan to a Base Rate Loan on a
day that is not the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by any Bank to lenders of funds
obtained by it in order to maintain any such LIBOR Loans. Such loss or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by each Bank of (i) its cost of obtaining the funds for
the LIBOR Loan being paid, prepaid, converted, not converted, or not borrowed,
as the case may be (based on the LIBOR Rate) for the period from the date of
such payment, prepayment, conversion, or failure to borrow or convert, as the
case may be, to the last day of the Interest Period for such Loan (or, in the
case of a failure to borrow, the Interest Period for the Loan which would have
commenced on the date of such failure to borrow) over (ii) the amount of
interest (as reasonably determined by such Bank) that would be realized by such
Bank in re-employing the funds so paid, prepaid, converted, or not borrowed,
converted, or prepaid for such period or Interest Period, as the case may be,
which determinations shall be prima facie correct and binding, absent manifest
error.
ss.4.9. Interest on Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents shall bear interest
compounded monthly and payable on demand at a rate per annum equal to the Base
Rate plus two (2) percent until such amount shall be paid in full (after, as
well as before, judgment).
ss.4.10. Interest Limitation. Notwithstanding any other term of this
Agreement or any Note or any other document referred to herein or therein, the
maximum amount of interest which may be charged to or collected from any person
liable hereunder or under any Note by any Bank shall be absolutely limited to,
and shall in no event exceed, the maximum amount of interest which could
lawfully be charged or collected under applicable law (including, to the extent
applicable, the provisions of Section 5197 of the Revised Statutes of the United
States of America, as amended, 12 U.S.C. Section 85, as amended), so that the
maximum of all amounts constituting interest under applicable law, howsoever
computed, shall never exceed as to any Person liable therefor such lawful
maximum, and any term of this Agreement, the Notes, the Letter of Credit
Applications, or any other document referred to herein or therein which could be
construed as providing for interest in excess of such lawful maximum shall be
and hereby is made expressly subject to and modified by the provisions of this
paragraph, and in the event any amount in excess of the lawful maximum is
charged or collected by the Agent or the Banks or paid by the Borrowers, the
Borrowers shall be entitled to the reimbursement of such excess together with
interest thereon at the highest lawful rate at the time of such overcharge.
ss.4.11. Illegality; Inability to Determine LIBOR Rate. Notwithstanding any
other provision of this Agreement, if (a) the introduction of, any change in, or
any change in the interpretation of, any law or regulation applicable to the
Agent or any Bank shall make it unlawful, or any central bank or other
governmental authority having jurisdiction thereof shall assert that it is
unlawful, for any Bank or the Agent to perform its obligations in respect of any
LIBOR Loans, or (b) if the Banks or the Agent shall reasonably determine with
respect to LIBOR Loans that (i) by reason of circumstances affecting any LIBOR
interbank market, adequate and reasonable methods do not exist for ascertaining
the LIBOR Rate which would otherwise be applicable during any Interest Period,
or (ii) deposits of Dollars in the relevant amount for the relevant Interest
Period are not available to the Banks or the Agent in any LIBOR interbank
market, or (iii) the LIBOR Rate does not or will not accurately reflect the cost
to the Banks or the Agent of obtaining or maintaining the applicable LIBOR Loans
during any Interest Period, then the Banks or the Agent shall promptly give
telephonic, telex or cable notice of such determination to the Borrowers (which
notice shall be conclusive and binding upon the Borrowers). Upon such
notification by the Banks or the Agent, the obligation of the Banks or the Agent
to make LIBOR Loans shall be suspended until the Banks or the Agent determine
that such circumstances no longer exist, and the outstanding LIBOR Loans shall
continue to bear interest at the applicable rate based on the LIBOR Rate until
the end of the applicable Interest Period, and thereafter shall be deemed
converted to Base Rate Loans in equal principal amounts.
ss.4.12. Concerning Joint and Several Liability of the Borrowers.
(a) Each of the Borrowers is accepting joint and several
liability hereunder and under the other Loan Documents in consideration
of the financial accommodations to be provided by the Banks under this
Agreement, for the mutual benefit, directly and indirectly, of each of
the Borrowers and in consideration of the undertakings of each other
Borrower to accept joint and several liability for the Obligations.
(b) Each of the Borrowers, jointly and severally, hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Borrowers with respect to the payment and performance of all of the
Obligations (including, without limitation, any Obligations arising
under this ss.4.12), it being the intention of the parties hereto that
all of the Obligations shall be the joint and several Obligations of
each of the Borrowers without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers shall fail
to make any payment with respect to any of the Obligations as and when
due or to perform any of the Obligations in accordance with the terms
thereof, then in each such event the other Borrowers will make such
payment with respect to, or perform, such Obligation.
(d) The Obligations of each of the Borrowers under the
provisions of this ss.4.12 constitute full recourse Obligations of each
of the Borrowers enforceable against each such corporation to the full
extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Agreement or any other
circumstance whatsoever.
(e) Except as otherwise expressly provided in this Agreement,
each of the Borrowers hereby waives notice of acceptance of its joint
and several liability, notice of any Loans made under this Agreement,
notice of any action at any time taken or omitted by the Banks under or
in respect of any of the Obligations, and, generally, to the extent
permitted by applicable law, all demands, notices and other formalities
of every kind in connection with this Agreement. Each of the Borrowers
hereby assents to, and waives notice of, any extension or postponement
of the time for the payment of any of the Obligations, the acceptance
of any payment of any of the Obligations, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by
the Banks at any time or times in respect of any default by any of the
Borrowers in the performance or satisfaction of any term, covenant,
condition or provision of this Agreement, any and all other indulgences
whatsoever by the Banks in respect of any of the Obligations, and the
taking, addition, substitution or release, in whole or in part, at any
time or times, of any security for any of the Obligations or the
addition, substitution or release, in whole or in part, of any of the
Borrowers. Without limiting the generality of the foregoing, each of
the Borrowers assents to any other action or delay in acting or failure
to act on the part of the Banks with respect to the failure by any of
the Borrowers to comply with any of its respective Obligations,
including, without limitation, any failure strictly or diligently to
assert any right or to pursue any remedy or to comply fully with
applicable laws or regulations thereunder, which might, but for the
provisions of this ss.4.12, afford grounds for terminating, discharging
or relieving any of the Borrowers, in whole or in part, from any of its
Obligations under this ss.4.12, it being the intention of each of the
Borrowers that, so long as any of the Obligations hereunder remain
unsatisfied, the Obligations of such Borrowers under this ss.4.12 shall
not be discharged except by performance and then only to the extent of
such performance. The Obligations of each of the Borrowers under this
ss.4.12 shall not be diminished or rendered unenforceable by any
winding up, reorganization, arrangement, liquidation, re-construction
or similar proceeding with respect to any of the Borrowers or the
Banks. The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption,
merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of any of the Borrowers
or the Banks.
(f) The provisions of this ss.4.12 are made for the benefit of
the Banks and their successors and assigns, and may be enforced in good
faith by them from time to time against any or all of the Borrowers as
often as the occasion therefor may arise and without requirement on the
part of the Banks first to marshal any of their claims or to exercise
any of their rights against any other Borrower or to exhaust any
remedies available to them against any other Borrower or to resort to
any other source or means of obtaining payment of any of the
Obligations hereunder or to elect any other remedy. The provisions of
this ss.4.12 shall remain in effect until all of the Obligations shall
have been paid in full or otherwise fully satisfied. If at any time,
any payment, or any part thereof, made in respect of any of the
Obligations, is rescinded or must otherwise be restored or returned by
the Banks upon the insolvency, bankruptcy or reorganization of any of
the Borrowers, or otherwise, the provisions of this ss.4.12 will
forthwith be reinstated in effect, as though such payment had not been
made.
ss.4.13. New Borrowers. Any existing or newly-created or acquired U.S
Subsidiary of the Parent (other than members of the MasTec International Group),
which (a) has annual gross revenues of at least $1,000,000 on an historical or
annualized basis, or (b) is the parent of any other Borrower, shall be Borrowers
hereunder, and all other U.S. Subsidiaries of the Parent designated as such by
the Parent shall be Excluded Subsidiaries, provided that the Excluded
Subsidiaries may not, in the aggregate, have in excess of five percent (5%) of
consolidated total assets, consolidated total liabilities or consolidated gross
revenues of the Parent and its U.S. Subsidiaries (other than members of the
MasTec International Group) at any time, in each case as determined in
accordance with GAAP. Any Subsidiary which is required to become a Borrower
pursuant to the terms of this ss.4.13 shall sign Notes, shall enter into an
amendment to this Agreement and the U.S. Stock Pledge Agreement with the other
parties hereto providing that such Subsidiary shall become a Borrower hereunder,
and shall provide such other documentation as the Agent may reasonably request,
including, without limitation, documentation with respect to conditions
specified in ss.9 hereof. In such event, the Agent is hereby authorized by the
parties to amend Schedule 1 hereto to include such Subsidiary as a Borrower
hereunder. The Borrowers hereby agree to pledge all of their stock of the U.S.
Subsidiaries (including members of the MasTec International Group which are U.S.
Subsidiaries), other than the stock of Excluded Subsidiaries, to the Agent for
the benefit of the Banks pursuant to the terms of the U.S. Stock Pledge
Agreement.
ss.4.14. Replacement of Banks.
If any Bank (an "Affected Bank") (i) makes demand upon the Borrowers for
(or if Borrowers are otherwise required to pay) amounts pursuant to
ss.ss.4.2(b), 4.4 or 4.5, (ii) is unable to make or maintain LIBOR Loans as a
result of a condition described in ss.4.11, or (iii) defaults in its obligation
to make Loans or participate in Letters of Credit in accordance with the terms
of this Agreement, the Borrowers or the Agent may, within 90 days of receipt of
such demand, notice (or the occurrence of such other event causing the Borrowers
to be required to pay such compensation or causing ss.4.11 to be applicable) or
default, as the case may be, by notice (a "Replacement Notice") in writing to
such Affected Bank and the Agent or Borrowers, as applicable, (A) request the
Affected Bank to cooperate with the Borrowers in obtaining a replacement bank
satisfactory to the Agent and the Borrowers (the "Replacement Bank"); (B)
request the non-Affected Banks to acquire and assume all of the Affected Bank's
Loans and Commitment and participate in Letters of Credit as provided herein,
but none of such Banks shall be under an obligation to do so; or (C) designate a
Replacement Bank reasonably satisfactory to the Agent or Borrowers, as
applicable. If any satisfactory Replacement Bank shall be obtained, and/or any
of the non-Affected Banks shall agree to acquire and assume all of the Affected
Bank's Loans and Commitment and participate in Letters of Credit, then such
Affected Bank shall, so long as no Event of Default shall have occurred and be
continuing, assign, in accordance with ss.17, all of its Commitment, Loans,
Notes and other rights and obligations under this Agreement and all other Loan
Documents to such Replacement Bank or non-Affected Banks, as the case may be, in
exchange for payment of the principal amount so assigned and all interest and
fees accrued on the amount so assigned, plus all other Obligations then due and
payable to the Affected Bank; provided, however, that (i) such assignment shall
be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Bank and such Replacement
Bank and/or non-Affected Banks, as the case may be, and (ii) prior to any such
assignment, the Borrowers shall have paid to such Affected Bank all amounts
properly demanded and unreimbursed under ss.ss.4.2(b), 4.4, 4.5 or 4.8. Upon the
effective date of such assignment the Borrowers shall issue replacement Notes to
such Replacement Bank and/or non-Affected Banks, as the case may be, and such
Replacement Bank shall become a "Bank" for all purposes under this Agreement and
the other Loan Documents.
ss.5. REPRESENTATIONS AND WARRANTIES. The Borrowers jointly and severally
represent and warrant to the Banks that on and as of the date of this Agreement
(any disclosure on a schedule pursuant to this ss.5 shall be deemed to apply to
all relevant representations and warranties, regardless of whether such schedule
is referenced in each relevant representation):
ss.5.1. Corporate Authority.
(a) Incorporation; Good Standing. Each of the Borrowers and
the International Signatories (i) is a corporation duly organized,
validly existing and in good standing or in current status under the
laws of its respective jurisdiction of incorporation, (ii) has all
requisite corporate power to own its property and conduct its business
as now conducted and as presently contemplated, and (iii) is in good
standing as a foreign corporation and is duly authorized to do business
in each jurisdiction in which its property or business as presently
conducted or contemplated makes such qualification necessary except
where a failure to be so qualified would not have a material adverse
effect on the business, assets or financial condition of the Borrowers,
taken as a whole, or the MasTec International Group, taken as a whole.
(b) Authorization. The execution, delivery and performance of
its Loan Documents and the transactions contemplated hereby and thereby
(i) are within the corporate authority of each of the Borrowers and the
International Signatories, (ii) have been duly authorized by all
necessary corporate proceedings, (iii) do not conflict with or result
in any material breach or contravention of any provision of law,
statute, rule or regulation to which any Borrower or International
Signatory is subject or any judgment, order, writ, injunction, license
or permit applicable to any Borrower or International Signatory so as
to have a material adverse effect on the assets, business or any
activity of such Borrower or International Signatory, (iv) do not
conflict with any provision of the corporate charter or bylaws of any
Borrower or International Signatory, (v) do not conflict with any
material contract, agreement or other instrument binding upon any
Borrower or International Signatory, and (vi) will not create a lien on
any properties of any of the Borrowers or International Signatories
other than pursuant to the Loan Documents.
(c) Enforceability. The execution, delivery and performance of
the Loan Documents will result in valid and legally binding obligations
of the Borrowers and the International Signatories, enforceable against
each of them in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to
the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before
which any proceeding therefor may be brought.
ss.5.2. Governmental Approvals. The execution, delivery and performance by
the Borrowers and the International Signatories of the Loan Documents and the
transactions contemplated hereby and thereby do not require any approval or
consent of, or filing with, any governmental agency or authority other than
those already obtained; provided, however, that the International Signatories
shall have ninety (90) days after the date hereof to effect this provision.
ss.5.3. Title to Properties; Leases. Each of the Parent and its
Subsidiaries owns all of its respective assets reflected in the consolidated
balance sheet of the Parent as at the Interim Balance Sheet Date or acquired
since that date (except property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no mortgages,
capitalized leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
ss.5.4. Financial Statements; Solvency.
(a) There has been furnished to the Banks (i) unaudited
consolidated financial statements of the Parent dated the Balance Sheet
Date, including reconciliations of (A) the Borrowers and the MasTec
International Group (excluding that portion of assets, liabilities,
income and expenses attributable to the Sintel Group) and (B) the
Sintel Group to the consolidated financial statements of the Parent,
and (ii) an unaudited consolidated balance sheet and statement of
income of the Parent dated the Interim Balance Sheet Date, including
reconciliations of (A) the Borrowers (excluding that portion of assets,
liabilities, income and expenses of the Parent attributable to
non-Borrowers) and (B) the non-Borrowers to the consolidated balance
sheet and statement of income of the Parent. Said financial statements
have been prepared in accordance with GAAP (but only to the extent that
GAAP is applicable to unaudited reports), fairly present in all
material respects the financial condition of the Borrowers, on a
consolidated basis, as at the close of business on the dates thereof
and the results of operations for the period then ended. There are no
contingent liabilities of the Borrowers as of such date involving
material amounts known to the officers of the Borrowers which have not
been disclosed in said balance sheets and the related notes thereto, as
the case may be.
(b) The Parent (both before and after giving effect to the
transactions contemplated by this Agreement) is solvent (i.e., it has
assets having a fair value in excess of the amount required to pay its
probable liabilities on its existing debts as they become absolute and
matured) and has, and expects to have, the ability to pay its debts
from time to time incurred in connection therewith as such debts
mature.
(c) The Borrowers taken as a whole (both before and after
giving effect to the transactions contemplated by this Agreement) are
solvent (i.e., they have assets having a fair value in excess of the
amount required to pay their probable liabilities on their existing
debts as they become absolute and matured) and have, and expect to
have, the ability to pay their debts from time to time incurred in
connection therewith as such debts mature.
ss.5.5. No Material Changes, Etc. Since the Balance Sheet Date, there have
occurred no material adverse changes in the financial condition or business of
the Borrowers as shown on or reflected in the consolidated balance sheet of the
Parent as at the Balance Sheet Date, or the consolidated statement of income for
the fiscal year then ended other than changes occurring in the ordinary course
of business that in the aggregate have not had a material adverse effect on the
business or financial condition of the Borrowers taken as a whole. Since the
Balance Sheet Date, no Borrower has made any Distribution other than to the
Parent.
ss.5.6. Permits, Franchises, Patents, Copyrights, Etc. Each of the
Borrowers possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
ss.5.7. Litigation. Except as shown on Schedule 5.7 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or, to the
knowledge of the Borrowers, threatened against any Borrower before any court,
tribunal or administrative agency or board which, if adversely determined,
might, either in any case or in the aggregate, have a material adverse effect on
the properties, assets, financial condition or business of the Borrowers,
considered as a whole, or materially impair the right of the Borrowers,
considered as a whole, to carry on business substantially as now conducted, or
result in any substantial liability not adequately covered by insurance, or for
which adequate reserves are not maintained on the consolidated balance sheet or
which question the validity of any of the Loan Documents or any action taken or
to be taken pursuant hereto or thereto.
ss.5.8. No Materially Adverse Contracts, Etc. None of the Borrowers is
subject to any charter, corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which in the judgment of the Borrowers'
officers has or is expected in the future to have a material adverse effect on
the business, assets or financial condition of the Borrowers taken as a whole.
None of the Borrowers is a party to any contract or agreement which in the
judgment of the Borrowers' officers has or is expected to have any material
adverse effect on the business of the Borrowers taken as a whole, except as
otherwise reflected in adequate reserves.
ss.5.9. Compliance With Other Instruments, Laws, Etc. None of the Borrowers
or the International Signatories is violating any provision of its charter
documents or by-laws or any agreement or instrument by which any of them may be
subject or by which any of them or any of their properties may be bound or any
decree, order, judgment, or any statute, license, rule or regulation, in a
manner which could in the aggregate result in the imposition of substantial
penalties or a material adverse effect on the financial condition, properties or
business of the Borrowers taken as a whole, or would impair the ability of any
Borrower or International Signatory to enter into or perform the Loan Documents.
ss.5.10. Tax Status. The Borrowers have made or filed all federal and state
income and all other tax returns, reports and declarations required by any
jurisdiction to which any of them is subject (unless and only to the extent that
any Borrower has set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported taxes); and have paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith; and have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. Except as set
forth on Schedule 5.10, there are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the
Borrowers know of no basis for any such claim.
ss.5.11. No Event of Default. No Default or Event of Default has occurred
and is continuing as of the date of this Agreement.
ss.5.12. Holding Company and Investment Company Acts. None of the Borrowers
is a "holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," as such terms are defined in the Public
Utility Holding Company Act of 1935; nor is any of them a "registered investment
company," or an "affiliated company" or a "principal underwriter" of a
"registered investment company," as such terms are defined in the Investment
Company Act of 1940, as amended.
ss.5.13. Absence of Financing Statements, Etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, which purports to cover,
affect or give notice of any present or possible future lien on, or security
interest in, any assets or property of any of the Borrowers or rights
thereunder.
ss.5.14. Employee Benefit Plans.
(a) In General. Each Employee Benefit Plan and each Guaranteed
Pension Plan has been maintained and operated in compliance in all
material respects with the provisions of ERISA and, to the extent
applicable, the Code, including but not limited to the provisions
thereunder respecting prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as required by ss.412
of ERISA. The Borrowers have heretofore delivered to the Agent the most
recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under
ss.103(d) of ERISA, with respect to each Guaranteed Pension Plan.
(b) Terminability of Welfare Plans. Except as set forth on
Schedule 5.14(b), no Employee Benefit Plan which is an employee welfare
benefit plan within the meaning of ss.3(1) or ss.3(2)(B) of ERISA,
provides benefit coverage subsequent to termination of employment
except as required by Title I, Part 6 of ERISA or applicable state
insurance laws. Any Borrower may terminate each such Plan at any time
(or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of such Borrower without
liability to any Person other than for claims arising prior to
termination.
(c) Guaranteed Pension Plans. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of ss.302(f) of ERISA, or otherwise, has been timely made.
No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed
Pension Plan, and neither any of the Borrowers nor any ERISA Affiliate
is obligated to or has posted security in connection with an amendment
of a Guaranteed Pension Plan pursuant to ss.307 of ERISA or
ss.401(a)(29) of the Code. No liability to the PBGC (other than
required insurance premiums, all of which have been paid) has been
incurred by any Borrower or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Reportable
Event, or any other event or condition which presents a material risk
of termination of any Guaranteed Pension Plan by the PBGC. Based on the
latest valuation of each Guaranteed Pension Plan (which in each case
occurred within twelve months of the date of this representation), and
on the actuarial methods and assumptions employed for that valuation,
the aggregate benefit liabilities of all such Guaranteed Pension Plans
within the meaning of ss.4001 of ERISA did not exceed the aggregate
value of the assets of all such Guaranteed Pension Plans, disregarding
for this purpose the benefit liabilities and assets of any Guaranteed
Pension Plan with assets in excess of benefit liabilities.
(d) Multiemployer Plans. None of the Borrowers nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan under ss.4201 of ERISA
or as a result of a sale of assets described in ss.4204 of ERISA. None
of the Borrowers nor any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or is insolvent under and
within the meaning of ss.4241 or ss.4245 of ERISA or is at risk of
entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
ss.5.15. Use of Proceeds. The proceeds of the Loans shall be used as
follows: (a) for general corporate purposes; (b) to repay the existing
indebtedness of the Borrowers; (c) for Investments permitted pursuant to ss.7.3
hereof, and (d) for acquisitions permitted pursuant to ss.7.4 hereof. No
proceeds of the Loans shall be used in any way that will violate Regulations G,
T, U or X of the Board of Governors of the Federal Reserve System.
ss.5.16. Environmental Compliance. Except as shown on Schedule 5.16:
(a) None of the Borrowers, nor any operator of their
properties, is in violation, or alleged violation, of any judgment,
decree, order, law, permit, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising
under RCRA, CERCLA, the Superfund Amendments and Reauthorization Act of
1986, the Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to health, safety or the
environment (the "Environmental Laws"), which violation would have a
material adverse effect on the business, assets or financial condition
of the Borrowers on a consolidated basis.
(b) None of the Borrowers has received notice from any third
party, including, without limitation, any federal, state or local
governmental authority, (i) that any one of them has been identified by
the United States Environmental Protection Agency ("EPA") as a
potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X;
(ii) that any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any
hazardous substances as defined by 42 U.S.C. ss.9601(14), any pollutant
or contaminant as defined by 42 U.S.C. ss.9601(33) or any toxic
substance, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any
one of them has generated, transported or disposed of has been found at
any site at which a federal, state or local agency or other third party
has conducted or has ordered that any Borrower conduct a remedial
investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, legal or administrative
proceeding arising out of any third party's incurrence of costs,
expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances.
(c) (i) No portion of the Real Property has been used for the
handling, processing, storage or disposal of Hazardous Substances
except in material compliance with applicable Environmental Laws; (ii)
in the course of any activities conducted by the Borrowers, or
operators of the Real Property, no Hazardous Substances have been
generated or are being used on such properties except in material
compliance with applicable Environmental Laws; (iii) there have been no
unpermitted Releases or threatened Releases of Hazardous Substances on,
upon, into or from the Real Property, which Releases would have a
material adverse effect on the value of such properties; (iv) to the
best of the Borrowers' knowledge, there have been no Releases on, upon,
from or into any real property in the vicinity of the Real Property
which, through soil or groundwater contamination, may have come to be
located on, and which would have a material adverse effect on the value
of, such properties; and (v) in addition, any Hazardous Substances that
have been generated on the Real Property have been transported offsite
only by carriers having an identification number issued by the EPA,
treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental
Laws, which transporters and facilities, to the best of the Borrowers'
knowledge, have been and are operating in material compliance with such
permits and applicable Environmental Laws.
(d) None of the Real Property is or shall be subject to any
applicable environmental clean-up responsibility law or environmental
restrictive transfer law or regulation, by virtue of the transactions
set forth herein and contemplated hereby.
ss.5.17. Perfection of Security Interests. Except as set forth on Schedule
5.17, the Collateral and the Agent's rights with respect to the Collateral are
not subject to any setoff, claims, withholdings or other defenses. The Borrowers
and MasTec International, Inc. are the owners of the Collateral free from any
lien, security interest, encumbrance and any other claim or demand, other than
liens in favor of the Agent for the benefit of the Banks to secure the
Obligations. The Stock Pledge Agreements are effective to create in favor of the
Agent, for the benefit of the Banks, a legal, valid and enforceable first
priority security interest in the Collateral. The certificates for the shares of
such Collateral have been delivered to the Agent; provided, however, that MasTec
International, Inc. shall have ninety (90) days after the Closing Date to effect
this provision. The parties agree that there shall be no public filing,
registration or notice of the Sintel Stock Pledge Agreement unless an Event of
Default shall have occurred.
ss.5.18. Certain Transactions. Except as set forth on Schedule 5.18 and
except for arm's length transactions pursuant to which the Borrowers make
payments in the ordinary course of business upon terms no less favorable than
the Borrowers could obtain from third parties, none of the officers, directors,
or employees of the Borrowers is presently a party to any transaction with the
Borrowers (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrowers, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner.
ss.5.19. Subsidiaries. Schedule 1 sets forth a complete and accurate list
of the direct or indirect Subsidiaries of the Parent, including the name of each
Subsidiary and its jurisdiction of incorporation, together with the number of
authorized and outstanding shares of each Subsidiary. All of the stock of each
U.S. Subsidiary (other than the Excluded Subsidiaries) and 66% of the stock of
Sintel which is directly or indirectly owned by the Parent has been pledged to
the Agent on behalf of the Banks pursuant to the Stock Pledge Agreements. The
Parent has good and marketable title to all of the shares it purports to own of
the stock of each such Subsidiary, free and clear in each case of any lien. All
such shares have been duly issued and are fully paid and non-assessable. Each
Subsidiary of the Parent, other than the Excluded Subsidiaries and the members
of the MasTec International Group, is a Borrower hereunder.
ss.5.20. True Copies of Charter and Other Documents. The Borrowers and the
International Signatories have furnished the Agent copies, in each case true and
complete as of the date hereof, of (a) all charter and other incorporation
documents (together with any amendments thereto) and (b) by-laws (together with
any amendments thereto); provided, however, that the International Signatories
shall have ninety (90) days to effect this provision as regards Sintel.
ss.6. AFFIRMATIVE COVENANTS OF THE BORROWERS. The Borrowers jointly and
severally covenant and agree that, so long as any Loan, Reimbursement Obligation
or Note is outstanding or the Banks have any obligation to make Loans or the
Agent has any obligation to issue, extend, or renew any Letters of Credit
hereunder:
ss.6.1. Punctual Payment. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all fees and other
amounts provided for in this Agreement and the other Loan Documents, all in
accordance with the terms of this Agreement and such other Loan Documents.
ss.6.2. Maintenance of Office. The Borrowers will maintain their chief
executive offices as set forth on Schedule 1 or at such other place in the
United States of America as the Borrowers shall designate upon thirty (30) days'
prior written notice to the Agent.
ss.6.3. Records and Accounts. Each of the Borrowers will keep true and
accurate records and books of account in which full, true and correct entries
will be made in accordance with GAAP and with the requirements of all regulatory
authorities, and will maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation, depletion, obsolescence and amortization
of its properties, all other contingencies, and all other proper reserves.
ss.6.4. Financial Statements, Certificates and Information. The Borrowers
shall deliver to the Banks:
(a) as soon as practicable, but in any event not later than
fifty (50) days after the end of each fiscal quarter of the Borrowers,
copies of the consolidated balance sheet and statement of income of the
Borrowers (excluding that portion of the Parent's assets, liabilities,
income and expenses attributable to non-Borrowers) as at the end of
such quarter, subject to year end adjustments, and the related
statement of cash flows, all in reasonable detail and prepared in
accordance with GAAP, with a certification by the principal financial
or accounting officer of the Parent (the "CFO") that these consolidated
financial statements are prepared in accordance with GAAP and fairly
present the consolidated financial condition of the Borrowers as at the
close of business on the date thereof and the results of operations for
the period then ended;
(b) as soon as practicable, but in any event not later than
fifty (50) days after the end of each fiscal quarter of the Parent,
copies of the consolidated balance sheet and statement of income of the
Parent as at the end of such quarter, subject to year end adjustments,
and the related statement of cash flows, all in reasonable detail and
prepared in accordance with GAAP, with a certification by the CFO that
these consolidated financial statements are prepared in accordance with
GAAP and fairly present the consolidated financial condition of the
Parent as at the close of business on the date thereof and the results
of operations for the period then ended;
(c) as soon as practicable, but, in any event not later than
one hundred (100) days after the end of each fiscal year of the Parent,
the consolidated and consolidating balance sheets of Parent as at the
end of such year, statements of cash flows, and the related
consolidated and consolidating statements of income, each setting forth
in comparative form the figures for the previous fiscal year, all such
consolidated and consolidating financial statements to be in reasonable
detail, prepared in accordance with GAAP and, with respect to the
consolidated financial statements, certified by Coopers & Xxxxxxx
L.L.P. or another independent accounting firm of national standing
acceptable to the Agent (the "Accountants") and including a
reconciliation of the consolidated financial statements of the
Borrowers (excluding that portion of the Parent's assets, liabilities,
income and expenses attributable to non-Borrowers) to the consolidated
financial statements of the Parent. In addition, simultaneously
therewith, the Borrowers shall use their reasonable best efforts to
provide the Banks with a written statement from such Accountants to the
effect that the Borrowers are in compliance with the covenants set
forth in ss.8 hereof, and that, in making the examination necessary to
said certification, nothing has come to the attention of such
Accountants that would indicate that any Default or Event of Default
exists, or, if such Accountants shall have obtained knowledge of any
then existing Default or Event of Default they shall disclose in such
statement any such Default or Event of Default; provided, that such
Accountants shall not be liable to the Banks for failure to obtain
knowledge of any Default or Event of Default;
(d) as soon as practicable, but in any event not later than
thirty (30) days after the end of each fiscal quarter of the Borrowers,
copies of the Accounts Receivable aging reports of the Borrowers and
the consolidated liquidity calculation for such date required under
ss.8.4 hereof, all in reasonable detail and prepared in accordance with
GAAP, with a certification by the CFO that these reports and
calculation are prepared in accordance with GAAP and fairly present the
Accounts Receivable of the Borrowers as at the close of business on the
date thereof;
(e) simultaneously with the delivery of the items referred to
in (a), (b) and (c) above, a statement in the form of Exhibit D hereto
(the "Compliance Certificate") certified by the CFO that the Borrowers
are in compliance with the covenants contained in ss.ss.6, 7 and 8
hereof as of the end of the applicable period and setting forth in
reasonable detail computations evidencing such compliance, provided
that if the Borrowers shall at the time of issuance of such certificate
or at any other time obtain knowledge of any Default or Event of
Default, the Borrowers shall include in such certificate or otherwise
deliver forthwith to the Banks a certificate specifying the nature and
period of existence thereof and what action the Borrowers propose to
take with respect thereto;
(f) contemporaneously with, or promptly following, the filing
or mailing thereof, copies of all material filed with the Securities
and Exchange Commission or sent to the stockholders of the Parent or
any of the Borrowers; and
(g) from time to time, such other financial data and other
information (including accountants' management letters) as the Banks
may reasonably request.
The Borrowers hereby authorize the Banks to disclose any information
obtained pursuant to this Agreement to all appropriate governmental regulatory
authorities where required by law; provided, however, that the Banks shall, to
the extent practicable and allowable under law, notify the Borrowers within a
reasonable period prior to the time any such disclosure is made; and provided
further, that this authorization shall not be deemed to be a waiver of any
rights to object to the disclosure by the Banks of any such information which
any Borrower has or may have under the federal Right to Financial Privacy Act of
1978, as in effect from time to time.
ss.6.5. Corporate Existence and Conduct of Business. Except where the
failure of a Borrower to remain so qualified would not materially adversely
impair the financial condition of the Borrowers on a consolidated basis, each
Borrower will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, corporate rights and
franchises; effect and maintain its foreign qualifications, licensing,
domestication or authorization except as terminated by its Board of Directors in
the exercise of its reasonable judgment; and shall not become obligated under
any contract or binding arrangement which, at the time it was entered into would
materially adversely impair the financial condition of the Borrowers on a
consolidated basis. Each Borrower will continue to engage primarily in the
businesses now conducted by it and in related businesses.
ss.6.6. Maintenance of Properties. The Borrowers will cause all material
properties used or useful in the conduct of their businesses to be maintained
and kept in good condition, repair and working order (reasonable wear and tear
excepted) and supplied with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Borrowers may be necessary so that the
businesses carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this section shall
prevent any Borrower from (i) discontinuing the operation and maintenance of any
of its properties if such discontinuance is, in the judgment of such Borrower,
desirable in the conduct of its or their business and does not in the aggregate
have a material adverse effect on the business or financial condition of the
Borrowers taken as a whole, or (ii) conducting a sale of assets permitted
pursuant to ss.7.4 hereof.
ss.6.7. Insurance. The Borrowers will maintain with financially sound and
reputable insurance companies, funds or underwriters' insurance of the kinds,
covering the risks (other than risks arising out of or in any way connected with
personal liability of any officers and directors thereof) and in the relative
proportionate amounts usually carried by reasonable and prudent companies
conducting businesses similar to that of the Borrowers, but in no event less
than the amounts and coverages set forth in Schedule 6.7 hereto as affected by
adjustments to retention levels in the ordinary course of business. In addition,
the Borrowers will furnish from time to time, upon the Agent's request, a
summary of the insurance coverage of each of the Borrowers, which summary shall
be in form and substance satisfactory to the Agent and, if requested by the
Agent, will furnish to the Agent copies of the applicable policies.
ss.6.8. Taxes. The Borrowers will each duly pay and discharge, or cause to
be paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges (other than taxes, assessments and
other governmental charges imposed by foreign jurisdictions which in the
aggregate are not material to the business or assets of the Borrowers taken as a
whole) imposed upon it and its real properties, sales and activities, or any
part thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies, which if unpaid might by law become a lien or
charge upon any of its property other than a Permitted Lien; provided, however,
that any such tax, assessment, charge, levy or claim need not be paid if the
validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if such Borrower shall have set aside on its books
adequate reserves with respect thereto; and provided, further, that such
Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien which may
have attached as security therefor.
ss.6.9. Inspection of Properties, Books, and Contracts. The Borrowers shall
permit the Banks, the Agent or any of their designated representatives, upon
reasonable notice to the Parent, to visit and inspect any of the properties of
the Borrowers, to examine the books of account of the Borrowers (including the
making of periodic accounts receivable reviews), or contracts (and to make
copies thereof and extracts therefrom), and to discuss the affairs, finances and
accounts of the Borrowers with, and to be advised as to the same by, their
officers, all at such times and intervals as the Banks may reasonably request.
ss.6.10. Compliance with Laws, Contracts, Licenses and Permits; Maintenance
of Material Licenses and Permits. Each Borrower will (i) comply with the
provisions of its charter documents and by-laws and all agreements and
instruments by which it or any of its properties may be bound; and (ii) comply
with all applicable laws and regulations (including Environmental Laws),
decrees, orders, judgments, licenses and permits, including, without limitation,
all environmental permits hereto ("Applicable Laws"), except where noncompliance
in the case of (i) and (ii) above would not have a material adverse effect in
the aggregate on the consolidated financial condition, properties or business of
the Borrowers taken as a whole, or would not impair the ability of any Borrower
or International Signatory to enter into or perform the Loan Documents. If at
any time while the Notes, or any Loan or Letter of Credit is outstanding or any
Bank or the Agent has any obligation to make Loans or issue Letters of Credit
hereunder, any authorization, consent, approval, permit or license from any
officer, agency or instrumentality of any government shall become necessary or
required in order that any Borrower may fulfill any of its obligations
hereunder, such Borrower will immediately take or cause to be taken all
reasonable steps within the power of such Borrower to obtain such authorization,
consent, approval, permit or license and furnish the Banks with evidence
thereof.
ss.6.11. ENVIRONMENTAL INDEMNIFICATION. THE BORROWERS COVENANT AND AGREE
THAT THEY WILL INDEMNIFY AND HOLD THE BANKS HARMLESS FROM AND AGAINST ANY AND
ALL CLAIMS, EXPENSE, DAMAGE, LOSS OR LIABILITY INCURRED BY THE BANKS (INCLUDING
ALL COSTS OF LEGAL REPRESENTATION INCURRED BY THE BANKS) RELATING TO (A) ANY
RELEASE OR THREATENED RELEASE OF HAZARDOUS SUBSTANCES ON THE REAL PROPERTY; (B)
ANY VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS AT THE REAL
PROPERTY OR THE OPERATIONS CONDUCTED THEREON; OR (C) THE INVESTIGATION OR
REMEDIATION OF OFFSITE LOCATIONS AT WHICH THE BORROWERS OR THEIR PREDECESSORS
ARE ALLEGED TO HAVE DIRECTLY OR INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES. IT
IS EXPRESSLY ACKNOWLEDGED BY THE BORROWERS THAT THIS COVENANT OF INDEMNIFICATION
SHALL INCLUDE CLAIMS, EXPENSE, DAMAGE, LOSS OR LIABILITY INCURRED BY THE BANKS
BASED UPON THE BANKS' NEGLIGENCE, AND THIS COVENANT SHALL SURVIVE ANY
FORECLOSURE OR ANY MODIFICATION, RELEASE OR DISCHARGE OF THE STOCK PLEDGE
AGREEMENTS OR THE PAYMENT OF THE LOANS AND SHALL INURE TO THE BENEFIT OF THE
BANKS, THEIR SUCCESSORS AND ASSIGNS.
ss.6.12. Further Assurances. The Borrowers will cooperate with the Banks
and execute such further instruments and documents as the Banks shall reasonably
request to carry out to the Banks' satisfaction the transactions contemplated by
this Agreement.
ss.6.13. Notice of Potential Claims or Litigation. The Borrowers shall
deliver to the Banks, within 30 days of receipt thereof, written notice of the
initiation of any action, claim, complaint, or any other notice of dispute or
potential litigation wherein the potential liability would be material to the
Borrowers taken as a whole under the regulations of the United States Securities
and Exchange Commission, together with a copy of each such notice received by
the Parent or any of its Subsidiaries.
ss.6.14. Notice of Default. The Borrowers will promptly notify the Banks in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed default
(whether or not constituting an Event of Default) under this Agreement or any
other note, evidence of indebtedness, indenture or other obligation evidencing
indebtedness in excess of $1,000,000 as to which any Borrower is a party or
obligor, whether as principal or surety, the Borrowers shall forthwith give
written notice thereof to the Banks, describing the notice of action and the
nature of the claimed default.
ss.7. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS. The Borrowers agree
that, so long as any Loan, Reimbursement Obligation or any Note is outstanding
or the Banks have any obligation to make Loans or the Agent has any obligation
to issue, extend or renew any Letters of Credit hereunder:
ss.7.1. Restrictions on Funded Debt. None of the Borrowers shall become or
be a guarantor or surety of, or otherwise create, incur, assume, or be or remain
liable, contingently or otherwise, with respect to any Funded Debt, or become or
be responsible in any manner (whether by agreement to purchase any obligations,
stock, assets, goods or services, or to supply or advance any funds, assets,
goods or services or otherwise) with respect to any Funded Debt of any other
Person, or incur any Funded Debt other than:
(a) Indebtedness to the Banks and the Agent arising under
this Agreement or the Loan Documents;
(b) Subordinated Debt of the Parent;
(c) Existing Funded Debt listed on Schedule 7.1(c) hereto, on
the terms and conditions in effect as of the date hereof, together with
any renewals, extensions or refinancings thereof on terms which are not
materially different than those in effect as of the date hereof;
provided that no more than $5,000,000 of such indebtedness may be
prepaid without prior written consent of the Banks;
(d) Funded Debt incurred in connection with acquisitions after
the date hereof of any stocks of, partnership or joint venture
interests in, or assets of any Person and owing to the seller(s) of
such stocks, partnership or joint venture interests, or assets;
provided that the principal amount of any such Funded Debt owed (when
aggregated with all such other Funded Debt permitted pursuant to this
ss.7.1(d)) shall not exceed $10,000,000; and provided, further, that
such acquisitions shall be otherwise permitted pursuant to ss.7.4; and
(e) Other Funded Debt not to exceed $10,000,000 in the
aggregate incurred after the date hereof (including existing Funded
Debt of any Borrower acquired pursuant to ss.7.4 hereof after the date
hereof).
ss.7.2. Restrictions on Liens. None of the Borrowers will create or incur
or suffer to be created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind upon any
property or assets of any character, whether now owned or hereafter acquired, or
upon the income or profits therefrom; or transfer any of such property or assets
or the income or profits therefrom for the purpose of subjecting the same to the
payment of indebtedness or performance of any other obligation in priority to
payment of its general creditors; or acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; or suffer to exist
for a period of more than thirty (30) days after the same shall have been
incurred any indebtedness or claim or demand against it which if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; or sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles or chattel paper,
with or without recourse, except as follows (the "Permitted Liens"):
(a) Liens securing Funded Debt permitted under ss.ss.7.1(d)
and 7.1(e) incurred in connection with the lease or acquisition of
property or fixed assets useful or intended to be used in carrying on
the business of the Borrowers, provided that such Liens shall encumber
only the property or assets so acquired and shall not exceed the fair
market value thereof and provided further that the aggregate amount of
Funded Debt secured by such liens shall not exceed $5,000,000;
(b) Liens to secure taxes, assessments and other government
charges or claims for labor, material or supplies in respect of
obligations not overdue;
(c) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) Liens in respect of judgments or awards which have been in
force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which any
Borrower shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review and in respect
of which the Borrowers have maintained adequate reserves;
(e) Liens of carriers, warehousemen, mechanics and
materialmen, and other like liens, in existence less than one-hundred
and twenty (120) days from the date of creation thereof in respect of
obligations not overdue;
(f) Encumbrances consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which any Borrower is a party, and other minor
liens or encumbrances none of which in the opinion of the respective
Borrower interferes materially with the use of the property affected in
the ordinary conduct of the business of such Borrower, which defects do
not individually or in the aggregate have a material adverse effect on
the business of such Borrower individually or of the Borrowers on a
consolidated basis;
(g) Liens (including Liens securing Funded Debt permitted
under ss.7.1(c)) existing as of the date hereof and listed on Schedule
7.2(g) on the terms and conditions in effect as of the date hereof;
(h) Existing Liens in connection with the Fleet Credit
Agreement and the First Union mortgages, provided that the proceeds of
the initial Loan advanced hereunder shall be used to discharge such
Liens;
(i) Liens granted pursuant to the Stock Pledge Agreements; and
(j) Other Liens securing indebtedness in an aggregate amount
not to exceed $500,000 at any time.
ss.7.3. Restrictions on Investments. None of the Borrowers shall make or
permit to exist or to remain outstanding any other Investment other than:
(a) marketable direct or guaranteed obligations of the United
States of America or any agency or instrumentality thereof fully
guaranteed or otherwise fully backed by the full faith and credit of
the United States Government that mature within one (1) year from the
date of purchase by the Borrower;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks or Eligible
Foreign Banks having total assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United
States of America or any state thereof that at the time of purchase
have been rated and the ratings for which are not less than "P 1" if
rated by Xxxxx'x Investors Services, Inc., and not less than "A 1" if
rated by Standard and Poor's;
(d) Subject to ss.7.1 and ss.7.4, Investments by any Borrower
in any other Borrower; and
(e) Investments by any Borrower in any affiliate or Subsidiary
of a Borrower which is not also a Borrower (which may include the
MasTec International Group or other non-U.S. entities) or in any other
Person, provided, however, that the aggregate amount from the date
hereof of such Investments outstanding at any time shall not exceed
$15,000,000 plus
(i) the lesser of (A) the sum of net cash proceeds
received in connection with the sale of the Cempresa, S.A.
and Supercanal Holding, S.A. investments and the issuance
of common stock of the Parent after the date hereof or
(B) $35,000,000;
plus
(ii) with the prior consent of the Majority Banks,
(A) 50% of net cash proceeds received in connection with the
issuance of Subordinated Debt after the date hereof plus (B)
without double counting any such amounts included in (i)(A)
hereof, up to 75% of net cash proceeds received in connection
with the issuance of common stock of the Parent after the date
hereof;
provided, however, that the aggregate amount of (ii) hereof shall not exceed
$100,000,000.
Notwithstanding (e) above, none of the Borrowers shall make any Investment
in any Subsidiary which is not a Borrower hereunder unless, both before and
after giving effect thereto, there does not exist a Default or Event of Default
and no Default or Event of Default would be created by the making of such
Investment.
ss.7.4. Mergers, Consolidations, Sales. None of the Borrowers shall be a
party to any merger, consolidation or exchange of stock, or purchase or
otherwise acquire all or substantially all of the assets or stock of, or any
partnership or joint venture interest in, any other Person except as otherwise
provided in this ss.7.4, or sell, transfer, convey or lease any assets or group
of assets (except sales of equipment tools, parts and related assets in the
ordinary course of business, sales of assets totaling an aggregate amount, from
the date hereof through the Maturity Date, of no more than $10,000,000, and
dispositions listed on Schedule 7.4) or sell or assign, with or without
recourse, any receivables (except to another Borrower). A Borrower may purchase
or otherwise acquire all or substantially all of the assets or stock of any
class of, or joint venture interest in, any Person provided that (a) at the time
of such acquisition, no Default or Event of Default has occurred and is
continuing, and such acquisition will not otherwise create a Default or an Event
of Default hereunder; (b) the business to be acquired is predominantly in the
same lines of business as the Borrowers, or businesses reasonably related
thereto; (c) the aggregate cash consideration to be paid in connection with any
such acquisition (including deferred payments and the aggregate amount of all
Funded Debt assumed, but excluding contingent payments) shall not exceed
$10,000,000; (d) the Borrowers are in current compliance with and, giving effect
to the proposed acquisition (including any borrowings made or to be made in
connection therewith), will continue to be in compliance with all of the
covenants in ss.8 hereof on a pro forma historical combined basis as if the
transaction occurred on the first day of the period of measurement, and in the
event that the aggregate cash consideration given in connection with any such
acquisition exceeds $7,500,000, including deferred payments and the aggregate
amount of all liabilities assumed, the Banks shall have been provided with a
Compliance Certificate demonstrating such compliance; (e) the board of directors
and (if required by applicable law) the shareholders, or the equivalent thereof,
of the business to be acquired has approved such acquisition; (f) the business
to be acquired operates predominantly in the continental United States; (g) in
the case of an asset acquisition, all of the assets to be acquired shall be
owned by an existing or newly created Subsidiary of the Parent which is a
Borrower, all of the stock of which that is directly or indirectly owned by the
Parent has been or will be pledged to the Agent on behalf of the Banks, or, in
the case of a stock acquisition, the acquired company shall become or shall be
merged with a wholly-owned Subsidiary of the Parent which is a Borrower, 100% of
the stock of which has been or will be pledged to the Agent on behalf of the
Banks; and (h) if such acquisition is made by a merger, the surviving entity
shall be a Borrower, 100% of the stock of which shall be pledged to the Agent on
behalf of the Banks. Any Borrower may merge with any other Borrower.
ss.7.5. Sale and Leaseback. None of the Borrowers shall enter into any
arrangement, directly or indirectly, whereby any Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property which such Borrower intends to use for substantially the
same purpose as the property being sold or transferred, without the prior
written consent of the Banks; other than such arrangements which do not in the
aggregate exceed $100,000.
ss.7.6. Restricted Distributions and Redemptions. None of the Borrowers may
make Distributions except as set forth in this ss.7.6. Each Borrower may make
distributions payable solely in common stock or preferred stock of such
Borrower, subject to the requirement to pledge all such stock pursuant to
ss.5.19 hereof. Borrowers other than the Parent may declare or pay Distributions
to the Parent. In addition, the Borrowers (other than the Parent) shall not
redeem, convert, retire or otherwise acquire shares of any class of capital
stock of such Borrowers. The Parent may declare or pay dividends and may redeem,
convert, retire, or otherwise acquire shares of its capital stock, provided that
the aggregate amount of all such Distributions by the Parent shall not exceed
50% of Consolidated Net Income in any one fiscal year. None of the Borrowers may
make any Distribution under this ss.7.6 if a Default or Event of Default exists
or would be created by the making of such Distribution. The Borrowers shall not
effect or permit any change in or amendment to any document or instrument
pertaining to the terms of the Borrowers' or the International Signatories'
capital stock other than the amendment to the Parent's certificate of
incorporation increasing the authorized amount of common stock and the par value
of the common stock and the preferred stock.
ss.7.7. Employee Benefit Plans. None of the Borrowers nor any ERISA
Affiliate will:
(a) engage in any "prohibited transaction" within the meaning
of ss.406 of ERISA or ss.4975 of the Code which could result in a
material liability for the Borrowers taken as a whole; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency," as such term is defined in ss.302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of any Borrower pursuant to ss.302(f) or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant to ss.307 of ERISA or
ss.401(a)(29) of the Code; or
(e) permit or take any action which would result in the
aggregate benefit liabilities (within the meaning of ss.4001 of ERISA)
of all Guaranteed Pension Plans exceeding the value of the aggregate
assets of such Plans, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of
benefit liabilities.
The Borrowers will (i) promptly upon filing the same with the Department of
Labor or Internal Revenue Service, furnish to the Banks a copy of the most
recent actuarial statement required to be submitted under ss.103(d) of ERISA and
Annual Report, Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch, furnish to
the Banks any notice, report or demand sent or received in respect of a
Guaranteed Pension Plan under ss.ss.302, 4041, 4042, 4043, 4063, 4066 and 4068
of ERISA, or in respect of a Multiemployer Plan, under ss.ss.4041A, 4202, 4219,
4242, or 4245 of ERISA.
ss.7.8. Negative Pledges. Except for Permitted Liens, no Borrower will
pledge any of its assets to any Person other than to the Agent for the benefit
of the Banks, nor will any Borrower grant any negative pledges on their assets
to any Person other than hereunder.
ss.7.9. Pledges of Stock of the Sintel Group. So long as the Sintel Stock
Pledge Agreement or any successor agreement has not been terminated pursuant to
ss.11 hereof, Sintel will not pledge any of the capital stock of the Sintel
Group to any Person other than to the Agent for the benefit of the Banks, nor
will Sintel grant any negative pledges on the capital stock of the Sintel Group
to any Person other than hereunder.
ss.7.10. Newly-Created Subsidiaries. No Borrower shall create a Subsidiary
which is not a U.S. Subsidiary.
ss.8. FINANCIAL COVENANTS OF THE BORROWERS. The Borrowers agree that, so
long as any Loan, Reimbursement Obligation or any Note is outstanding or the
Banks have any obligation to make Loans or the Agent has any obligation to
issue, extend or renew any Letters of Credit hereunder, they shall comply with
the following covenants:
ss.8.1. Leverage Ratios. As of the end of any fiscal quarter of the
Borrowers commencing with the fiscal quarter ending March 31, 1997, (a) the
ratio of (i) Senior Debt to (ii) EBITDA for the period of four (4) consecutive
fiscal quarters ending on such date shall not exceed 2.50:1, and (b) the ratio
of (i) Funded Debt to (ii) EBITDA for the period of four (4) consecutive fiscal
quarters ending on such date shall not exceed 3.00:1.
ss.8.2. Capital Expenditures. In any fiscal year, the Borrowers shall not
make or commit to make Capital Expenditures in excess of two times the
consolidated depreciation and amortization expenses of the Borrowers for such
fiscal year.
ss.8.3. Interest Coverage Ratio. As of the end of any fiscal quarter of the
Borrowers commencing with the fiscal quarter ending March 31, 1997, the ratio of
(a) EBIT for the period of four (4) consecutive fiscal quarters ending on such
date to (b) Consolidated Total Interest Expense for such period shall not be
less than 4.00:1.
ss.8.4. Liquidity. As of the end of any fiscal quarter of the Borrowers
commencing with the fiscal quarter ending March 31, 1997, (i) the ratio of (a)
Qualified Accounts Receivable to (b) the sum of trade payables of the Borrowers
shall not be less than 1.40:1, and (ii) the ratio of (a) Qualified Accounts
Receivable to (b) Accounts Receivable shall not be less than 0.70:1.
ss.8.5. Profitable Operations. The Borrowers will not permit Consolidated
Net Income to be less than $0 for any two consecutive fiscal quarters.
ss.9. CLOSING CONDITIONS.
The obligations of the Banks to make the Loans and the Agent to issue
Letters of Credit on the Closing Date and otherwise be bound by the terms of
this Agreement shall be subject to the satisfaction of each of the following
conditions precedent:
ss.9.1. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by each Borrower and International Signatory
of the Loan Documents shall have been duly and effectively taken, and evidence
thereof satisfactory to the Agent shall have been provided to the Agent;
provided, however, that Sintel shall have ninety (90) days after the Closing
Date to effect this provision.
ss.9.2. Loan Documents, Etc. Each of the Loan Documents shall have been
duly and properly authorized, executed and delivered by the respective parties
thereto and shall be in full force and effect in a form satisfactory to the
Banks; provided, however, that Sintel shall have ninety (90) days after the
Closing Date to effect this provision.
ss.9.3. Certified Copies of Charter Documents. The Agent shall have
received from each of the Borrowers and the International Signatories a copy,
certified by a duly authorized officer of such Person to be true and complete on
the date hereof, of each of (a) its charter or other incorporation documents
(including certificates of merger and name changes) as in effect on such date of
certification, and (b) its by-laws as in effect on such date; provided, however,
that Sintel shall have ninety (90) days after the Closing Date to effect this
provision.
ss.9.4. Incumbency Certificate. The Agent shall have received an incumbency
certificate, dated as of the date hereof, signed by duly authorized officers
giving the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign the Loan Documents on behalf of the Borrowers and the
International Signatories; (b) to make Loan and Letter of Credit Requests; and
(c) to give notices and to take other action on the Borrowers' and the
International Signatories' behalf under the Loan Documents; provided, however,
that Sintel shall have ninety (90) days after the Closing Date to effect this
provision.
ss.9.5. Validity of Liens. Each of the Stock Pledge Agreements shall be
effective to create in favor of the Agent a legal, valid and enforceable first
security interest in and lien upon the Collateral, subject only to Permitted
Liens. All filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Agent to protect and preserve such
security interests shall have been duly effected. The Agent shall have received
evidence thereof in form and substance satisfactory to the Agent; provided,
however, that the International Signatories shall have ninety (90) days after
the Closing Date to effect this provision.
ss.9.6. UCC Search Results. The Agent shall have received the results of
UCC searches with respect to the Borrowers indicating no liens other than
Permitted Liens and otherwise in form and substance satisfactory to the Agent.
ss.9.7. Certificates of Insurance. The Agent shall have received (a) a
certificate of insurance from an independent insurance broker dated as of the
date hereof, or within fifteen (15) days prior thereto, identifying insurers,
types of insurance, insurance limits, and policy terms, and otherwise describing
the insurance coverage of the Borrowers and (b) copies of all policies
evidencing such insurance (or certificates therefor signed by the insurer or an
agent authorized to bind the insurer).
ss.9.8. Opinion of Counsel. The Banks shall have received favorable legal
opinions from general counsel to the Borrowers, addressed to the Banks, dated as
of the date hereof, in form and substance satisfactory to the Agent. Opinions
satisfactory to the Agent regarding the Sintel Stock Pledge Agreement and the
International Pledge Documents (defined therein) shall be received within ninety
(90) days of the date hereof.
ss.9.9. Certificate of Financial Condition. The Agent shall have received a
certificate from the CFO satisfactory to the Agent certifying that no material
adverse change has occurred in the financial condition, results of operations,
business, properties or prospects of the Borrowers, taken as a whole, since the
date of the most recent financial statements and projections provided to the
Banks.
ss.9.10. Initial Compliance Certificate. The Agent shall have received a
Compliance Certificate regarding compliance with the covenants set forth in ss.8
hereof as of the Closing Date.
ss.9.11. Interim Balance Sheets and Income Statements. The Agent shall have
received an unaudited consolidated balance sheet and statement of income of the
Parent dated the Interim Balance Sheet Date, including reconciliations of (A)
the Borrowers (excluding that portion of assets, liabilities, income and
expenses of the Parent attributable to non-Borrowers) and (B) the non-Borrowers
to the consolidated balance sheet and statement of income of the Parent, which
balance sheet and statement of income shall be attached hereto as Schedule 9.11.
ss.9.12. Payoff Letters. The Banks shall have received payoff letters from
Fleet Financial Corporation ("Fleet") with respect to the Fleet Credit Agreement
and from First Union regarding its mortgages indicating the amount to be paid to
such lenders on the Closing Date in order to fully discharge such obligations to
the lenders and acknowledging that upon receipt of such funds each will
forthwith execute and deliver to the Agent for filing all termination statements
and take such other actions as may be necessary to discharge all mortgages and
security interests in favor of such lender.
ss.10. CONDITIONS OF ALL LOANS.
The obligations of the Banks to make any Loan (including without limitation
the obligation of the Agent to issue any Letter of Credit) on and subsequent to
the Closing Date is subject to the following conditions precedent:
ss.10.1. Representations True; No Event of Default. Each of the
representations and warranties of the Borrowers contained in this Agreement or
in any document or instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made and shall also
be true at and as of the time of any Drawdown Date with the same effect as if
made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Agreement and changes occurring
in the ordinary course of business which singly or in the aggregate are not
materially adverse, or to the extent that such representations and warranties
relate expressly to an earlier date) and no Default or Event of Default shall
have occurred and be continuing.
ss.10.2. Performance; No Event of Default. The Borrowers shall have
performed and complied with all terms and conditions herein required to be
performed or complied with by them prior to or at the time of any Loan, and at
the time of any Loan, there shall exist no Event of Default or condition which
would result in an Event of Default upon consummation of such Loan (including
without limitation any amounts to be drawn under a Letter of Credit). Each
request by the Borrowers for a Loan (including without limitation each request
for issuance of a Letter of Credit) subsequent to the first Loan shall
constitute certification by the Borrowers that the conditions specified in
ss.ss.10.1 and 10.2 will be duly satisfied on the date of such Loan or Letter of
Credit issuance.
ss.10.3. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof which in the reasonable
opinion of the Banks would make it illegal for the Banks to make Loans
hereunder.
ss.10.4. Governmental Regulation. The Banks shall have received such
statements in substance and form reasonably satisfactory to the Banks as they
shall require for the purpose of compliance with any applicable regulations of
the Comptroller of the Currency or the Board of Governors of the Federal Reserve
System.
ss.10.5. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Agreement and all documents incident thereto
shall have been delivered to the Banks as of the date hereof in form and
substance satisfactory to the Banks, including without limitation a Letter of
Credit and Loan Request in the form attached hereto as Exhibit C, and the Banks
shall have received all information and such counterpart originals or certified
or other copies of such documents as the Banks may reasonably request.
ss.11. COLLATERAL SECURITY. The Obligations shall be secured by a perfected
security interest (having, with respect to each category of Collateral, the
respective rights and priorities set forth herein and in the Stock Pledge
Agreements) in all of the Collateral, whether now owned or hereafter acquired,
pursuant to the terms of the Stock Pledge Agreements. However, provided that no
Default or Event of Default has occurred and is continuing, the Agent shall
release the stock of Sintel and the Sintel Stock Pledge Agreement (or any
successor agreement) shall terminate, if such release and termination is a
required condition of refinancing the indebtedness of Sintel or its immediate
parent (including, without limitation, refinancing existing indebtedness to
Telefonica), provided that the Agent consents to the terms of such refinancing,
which consent shall not be unreasonably withheld.
ss.12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
ss.12.1. Events of Default and Acceleration. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice and/or lapse of time, "Defaults") shall
occur:
(a) the Borrowers shall fail to pay any principal of the Loans
or any Reimbursement Obligations when the same shall become due and
payable, whether at the Maturity Date or any accelerated date of
maturity or at any other date fixed for payment;
(b) the Borrowers shall fail to pay any interest or fees or
other amounts owing hereunder within five (5) Business Days after the
same shall become due and payable whether at the Maturity Date or any
accelerated date of maturity or at any other date fixed for payment;
(c) the Borrowers shall fail to comply with the covenants
contained inss.ss.6.3, 6.5, 6.7, 6.9, 6.13, 6.14, 7 or 8 hereof;
(d) the Borrowers shall fail to comply with the
covenants contained inss.ss.6.4 or 6.10 hereof and such failure shall
be continuing for ten (10) days;
(e) the Borrowers shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents (other
than those specified in subsections (a), (b), (c) and (d) above) within
thirty (30) days after written notice of such failure has been given to
the Borrowers by the Banks;
(f) any representation or warranty contained in this Agreement
or in any document or instrument delivered pursuant to or in connection
with this Agreement shall prove to have been false in any material
respect upon the date when made or repeated;
(g) any Borrower shall fail to pay at maturity, or within any
applicable period of grace, any and all obligations for Funded Debt
(other than the Obligations) or any Guarantee with respect thereto in
an aggregate amount greater than $1,000,000, or fail to observe or
perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed money
in an aggregate amount greater than $1,000,000 for such period of time
as would, or would have permitted (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations
issued thereunder to accelerate the maturity thereof;
(h) (i) any Borrower makes an assignment for the benefit of
creditors, or admits in writing its inability to pay or generally fails
to pay its debts as they mature or become due, or petitions or applies
for the appointment of a trustee or other custodian, liquidator or
receiver of any Borrower or of any substantial part of the assets of
any Borrower or commences any case or other proceeding relating to any
Borrower under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or takes any action to
authorize or in furtherance of any of the foregoing (other than the
dissolution of Subsidiaries with assets, liabilities and projected or
anticipated revenues of less than (in each such case) $100,000); or
(ii) any such petition or application is filed or any such case or
other proceeding is commenced against any Borrower and or any Borrower
indicates its approval thereof, consent thereto or acquiescence
therein;
(i) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any Borrower bankrupt
or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of
any Borrower in an involuntary case under federal bankruptcy laws as
now or hereafter constituted, and such decree or order remains in
effect for more than sixty (60) days, whether or not consecutive;
(j) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive,
any final judgment against any Borrower which, with other outstanding
final judgments against any Borrower, exceeds in the aggregate
$1,000,000 after taking into account any undisputed insurance coverage;
(k) any Borrower or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA
in an aggregate amount exceeding $1,000,000; any Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of
ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $1,000,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to
make a required installment or other payment (within the meaning of
ss.302(f)(1) of ERISA), provided the Agent determines in its reasonable
discretion that such event (A) could be expected to result in liability
of such Borrower to the PBGC or the Plan in an agregate amount
exceeding $1,000,000 and (B) could constitute grounds for the
termination of such Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer
such Plan or for the imposition of a lien in favor of the Guaranteed
Pension Plan; (ii) the appointment by a United States District Court of
a trustee to administer such Plan; or (iii) the institution by the PBGC
of proceedings to terminate such Plan;
(l) any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or
approval of the Banks, or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of the Borrowers or any of their
respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof; or
(m) (i) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of 20% or more of the outstanding shares of common stock of the
Parent, or (ii) members of the Xxxxx X. Mas family cease to own 30% or
more of the common stock of the Parent; or (iii) during any period of
twelve consecutive calendar months, individuals who were directors of
the Parent on the first day of such period shall cease to constitute a
majority of the Board of Directors of the Parent unless the replacement
directors were nominated by the original directors;
then, and in any such event, so long as the same may be continuing, the Agent
may and, upon the request of the Banks, shall, by notice in writing to the
Borrowers, declare all amounts owing with respect to this Agreement, the Notes
and the other Loan Documents and all Reimbursement Obligations to be, and they
shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided that, in the event of any
Bankruptcy Event, all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Agent or any Bank.
Upon demand by the Banks after the occurrence of any Event of Default, the
Borrowers shall immediately provide to the Agent cash in an amount equal to the
aggregate Maximum Drawing Amount of all Letters of Credit and Reimbursement
Obligations outstanding, to be held by the Agent as collateral security for the
Obligations.
ss.12.2. Termination of Commitments. If any Event of Default shall occur,
any unused portion of the Total Commitment hereunder shall forthwith terminate
and the Banks shall be relieved of all further obligations to make Loans to the
Borrowers and the Agent shall be relieved of all further obligations to issue
Letters of Credit; or if on any Drawdown Date the conditions precedent to the
making of the Loans to be made on such Drawdown Date or the issuance of any
Letters of Credit to be issued on such date are not satisfied (except as a
consequence of a default on the part of the Banks), the Banks may by notice to
the Borrowers, terminate the unused portion of the Total Commitment hereunder,
and upon such Notice being given, such unused portion of the Total Commitment
hereunder shall terminate immediately and the Banks shall be relieved of all
further obligations to make Loans to the Borrowers and the Agent shall be
relieved of all further obligations to issue, extend or renew Letters of Credit.
No termination of any portion of the Total Commitment hereunder shall relieve
the Borrowers of any of the Obligations.
ss.12.3. Remedies. Subject to ss.14.8, in case any one or more of the
Events of Default shall have occurred and be continuing, and whether or not the
Banks shall have accelerated the maturity of the Loans pursuant to ss.12.1, each
Bank, if owed any amount with respect to the Loans or the Reimbursement
Obligations, may, with the consent of the Majority Banks but not otherwise,
proceed to protect and enforce its rights by suit in equity, action at law or
other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Agreement and the other Loan Documents
or any instrument pursuant to which the Obligations to such Bank are evidenced,
including, without limitation, as permitted by applicable law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law.
ss.13. SETOFF. Regardless of the adequacy of any collateral, during the
continuance of an Event of Default, any deposits or other sums credited by or
due from any Bank to the Borrowers and any securities or other property of the
Borrowers in the possession of such Bank may be applied to or set off against
the payment of the Obligations and any and all other liabilities, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrowers to the Banks. Such Bank shall notify the
Parent and the other Banks of such application or setoff. The Banks agree among
themselves that, if a Bank shall obtain payment on any Obligations outstanding
under this Agreement through the exercise of a right of offset, banker's lien or
counterclaim, or from any other source (other than by way of a pro rata
payment), it shall promptly notify the Agent thereof and make such adjustments
with the other Banks as shall be equitable to the end that all the Banks shall
share the benefits of such payments pro rata in accordance with the aggregate
unpaid amount of the Notes held by each Bank immediately prior to the payment
obtained by such Bank as aforesaid. The Banks further agree among themselves
that if any payment to a Bank obtained by such Bank through the exercise of a
right of offset, banker's lien or counterclaim, or from any other source (other
than by way of a pro rata payment) as aforesaid shall be rescinded or must
otherwise be restored, the Banks who shall have shared the benefit of such
payment shall return their share of that benefit to the Bank whose payment shall
have been rescinded or otherwise restored.
ss.14. THE AGENT.
ss.14.1. Appointment of Agent, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents, provided, however, the Agent is hereby
authorized to serve only as an administrative and collateral agent for the Banks
and to exercise such powers as are reasonably incidental thereto and as are set
forth in this Agreement and the other Loan Documents. The Agent hereby
acknowledges that it does not have the authority to negotiate any agreement
which would bind the Banks or agree to any amendment, waiver or modification of
any of the Loan Documents or bind the Banks except as set forth in this
Agreement or the Loan Documents. Except as provided herein and in the other Loan
Documents, the Agent shall take action or refrain from acting only upon
instructions of the Banks and no action taken or failure to act without the
consent of the Banks shall be binding on any Bank which has not consented. Each
Bank irrevocably authorizes the Agent to execute the Stock Pledge Agreements and
all other instruments relating thereto and to take such action on behalf of each
of the Banks and to exercise all such powers as are expressly delegated to the
Agent under the Loan Documents and all related documents, together with such
other powers as are reasonably incidental thereto. It is agreed that the duties,
rights, privileges and immunities of the Agent, in its capacity as issuer of
Letters of Credit hereunder, shall be identical to its duties, rights,
privileges and immunities as a Bank as provided in this ss.14. The Agent shall
not have any duties, obligations or responsibilities, or any fiduciary
relationship with any Bank, except those expressly set forth in this Agreement
and the other Loan Documents. Without limiting the generality of the foregoing,
the Agent shall not be required to take any action with respect to any Default
or Event of Default, except as expressly provided in ss.12. Neither the Agent
nor any of its affiliates shall be responsible to the Banks for any recitals,
statements, representations or warranties made by the Borrowers or any other
Person whether contained herein or otherwise or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
other Loan Documents or any other document referred to or provided for herein or
therein or for any failure by the Borrowers or any other Person to perform its
obligations hereunder or thereunder or in respect of the Notes. The Agent 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 it
with reasonable care. Neither the Agent nor any of its directors, officers,
employees or agents shall be responsible for any action taken or omitted to be
taken in good faith by it or them hereunder or in connection herewith, except
for its or their own gross negligence or willful misconduct. The Agent in its
separate capacity as a Bank shall have the same rights and powers hereunder as
any other Bank.
ss.14.2. Actions By Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement as it reasonably
deems appropriate unless it shall first have received such advice or concurrence
of the Banks and shall be indemnified to its reasonable satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any of the Loan Documents in accordance with a request of the
Banks, and such request and any action taken or failure to act pursuant thereto
shall be binding upon the Banks and all future holders of the Notes or any
Letter of Credit Participation.
ss.14.3. INDEMNIFICATION. WITHOUT LIMITING THE OBLIGATIONS OF THE BORROWERS
HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENTS, THE BANKS AGREE TO INDEMNIFY THE
AGENT, RATABLY IN ACCORDANCE WITH THEIR RESPECTIVE COMMITMENT PERCENTAGES, FOR
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE
WHATSOEVER (OTHER THAN LOSSES WITH RESPECT TO THE AGENT'S PRO RATA SHARE OF THE
OBLIGATIONS) WHICH HAVE NOT BEEN REIMBURSED BY THE BORROWERS AND WHICH MAY AT
ANY TIME BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE AGENT IN ANY WAY
RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
DOCUMENTS CONTEMPLATED BY OR REFERRED TO HEREIN OR THEREIN OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY OR THE ENFORCEMENT OF ANY OF THE TERMS HEREOF OR
THEREOF OR OF ANY SUCH OTHER DOCUMENTS; PROVIDED, THAT NO BANK SHALL BE LIABLE
FOR ANY OF THE FOREGOING TO THE EXTENT THEY ARISE FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE AGENT (OR ANY AGENT THEREOF), IT BEING THE INTENT OF
THE PARTIES HERETO THAT ALL SUCH INDEMNIFIED PARTIES SHALL BE INDEMNIFIED FOR
THEIR ORDINARY SOLE OR CONTRIBUTORY NEGLIGENCE.
ss.14.4. Reimbursement. Without limiting the provisions of ss.14.3, the
Banks and the Agent hereby agree that the Agent shall not be obliged to make
available to any Person any sum which the Agent is expecting to receive for the
account of that Person until the Agent has determined that it has received that
sum. The Agent may, however, disburse funds prior to determining that the sums
which the Agent expects to receive have been finally and unconditionally paid to
the Agent, if the Agent wishes to do so. If and to the extent that the Agent
does disburse funds and it later becomes apparent that the Agent did not then
receive a payment in an amount equal to the sum paid out, then any Person to
whom the Agent made the funds available shall, on demand from the Agent, refund
to the Agent the sum paid to that Person. If, in the opinion of the Agent, the
distribution of any amount received by it in such capacity hereunder or under
the Loan Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been adjudicated by
a court of competent jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such Persons as shall be
determined by such court.
ss.14.5. Documents. The Agent will forward to each Bank, promptly after the
Agent's receipt thereof, a copy of each notice or other document furnished to
the Agent for such Bank hereunder; provided, however, that, notwithstanding the
foregoing, the Agent may furnish to the Banks a monthly summary with respect to
Letters of Credit issued hereunder in lieu of copies of the related Letter of
Credit Applications.
ss.14.6. Non-Reliance on Agent and Other Banks. Each Bank represents that
it has, independently and without reliance on the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of the financial condition and affairs of the Borrowers and
decision to enter into this Agreement and the other Loan Documents and agrees
that it will, independently and without reliance upon the Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own appraisals and decisions in taking or not
taking action under this Agreement or any other Loan Document. The Agent shall
not be required to keep informed as to the performance or observance by the
Borrowers of this Agreement, the other Loan Documents or any other document
referred to or provided for herein or therein or by any other Person of any
other agreement or to make inquiry of, or to inspect the properties or books of,
any Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning any person which may come into the
possession of the Agent or any of its affiliates. Each Bank shall have access to
all documents relating to the Agent's performance of its duties hereunder at
such Bank's request. Unless any Bank shall promptly object to any action taken
by the Agent hereunder (other than actions to which the provisions of ss.14.8
are applicable and other than actions which constitute gross negligence or
willful misconduct by the Agent), such Bank shall conclusively be presumed to
have approved the same.
ss.14.7. Resignation of Agent. The Agent may resign at any time by giving
60 days' prior written notice thereof to the Banks and the Borrowers. Upon any
such resignation, the Banks shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Banks and shall have
accepted such appointment within 30 days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a financial institution having a
combined capital and surplus in excess of $150,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation, the provisions of this Agreement 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 Agent. Any new Agent appointed pursuant to this ss.14.7 shall
immediately issue new Letters of Credit in place of Letters of Credit previously
issued by the Agent.
ss.14.8. Action by the Banks, Consents, Amendments, Waivers, Etc. Except as
otherwise expressly provided in this ss.14.8, any action to be taken (including
the giving of notice) may be taken or any consent or approval required or
permitted by the Agreement or any other Loan Document to be given by the Banks
may be given, and any term of this Agreement, any other Loan Document or any
other instrument, document or agreement related to this Agreement or the other
Loan Documents or mentioned therein may be amended and the performance or
observance by the Borrowers or any other person of any of the terms thereof and
any Default or Event of Default (as defined in any of the above-referenced
documents or instruments) may be waived (either generally or in a particular
instance and either retroactively or prospectively) only with the written
consent of the Majority Banks; provided, however, that no such consent or
amendment which affects the rights, duties or liabilities of the Agent (in its
capacity as Agent) shall be effective without the written consent of the Agent.
Notwithstanding the foregoing, no amendment, waiver or consent shall do any of
the following unless in writing and signed by ALL of the Banks: (a) increase the
principal amount of the Total Commitment (or subject the Banks to any additional
obligations), (b) reduce the principal of or interest on the Notes (including,
without limitation, interest on overdue amounts) or any fees or other amounts
payable hereunder, (c) postpone any date fixed for any payment in respect of
principal or interest or Reimbursement Obligations (including, without
limitation, interest on overdue amounts) on the Notes, or any fees or other
amounts payable hereunder; (d) extend the expiration date of any Letter of
Credit beyond the Maturity Date, (e) change the definition of "Majority Banks"
or number of Banks which shall be required for the Banks or any of them to take
any action under the Loan Documents; (f) amend this ss.14.8; (g) change the
Commitment Percentage of any Bank, except as permitted under ss.17 hereof; or
(h) except as otherwise permitted in ss.11 hereof, release any Collateral.
ss.15. EXPENSES.
The Borrowers agree to pay (a) any taxes (including any interest and
penalties in respect thereto) payable by the Agent or any of the Banks (other
than Income Taxes) on or with respect to the transactions contemplated by this
Agreement (the Borrowers hereby agreeing to indemnify the Agent and each Bank
with respect thereto), (b) the reasonable fees, expenses and disbursements of
the Agent's Special Counsel or any local counsel to the Agent incurred in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, each closing hereunder, and
amendments, modifications, approvals, consents or waivers hereto or hereunder,
(c) the fees, expenses and disbursements of the Agent incurred by the Agent in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including all credit
examination fees, (d) all reasonable out-of-pocket expenses (including without
limitation reasonable attorneys' fees and costs, which attorneys may be
employees of any Bank or the Agent, and reasonable consulting, accounting,
appraisal, investment banking and similar professional fees and charges)
incurred by any Bank or the Agent in connection with (i) the enforcement of or
preservation of rights under any of the Loan Documents against the Borrowers or
the administration thereof after the occurrence of a Default or Event of Default
and (ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the Agent's relationship with the
Borrowers. In addition, the Borrowers agree to pay and save the Agent and the
Banks harmless against any liability for payment of any state documentary stamp
taxes, intangible taxes or similar taxes (including interest or penalties, if
any) which may now or hereafter be determined to be payable in respect to the
execution, delivery or recording of any Loan Document or the funding of any
Loan, whether originally thought to be due or not, and regardless of any mistake
of fact or law on the part of the Agent, the Banks or the Borrowers with respect
to the applicability of such tax. The covenants of this ss.15 shall survive
payment or satisfaction of all other Obligations.
ss.16. SURVIVAL OF COVENANTS, ETC. Unless otherwise stated herein, all
covenants, agreements, representations and warranties made herein, in the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrowers pursuant hereto shall be deemed to have been relied upon by the
Banks and the Agent, notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making of the Loans and the issuance,
extension or renewal of any Letters of Credit, as herein contemplated, and shall
continue in full force and effect so long as any amount due under this
Agreement, any Letter of Credit or the Notes remains outstanding and unpaid or
any Bank has any obligation to make any Loans or the Agent has any obligation to
issue any Letters of Credit hereunder. All statements contained in any
certificate or other paper delivered by or on behalf of the Borrowers pursuant
hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrowers hereunder.
ss.17. ASSIGNMENT AND PARTICIPATION. It is understood and agreed that each
Bank shall have the right to assign at any time all or a portion of its
Commitment Percentage and interests in the risk relating to the Loans,
outstanding Letters of Credit, and its Commitment hereunder in an amount equal
to or greater than $5,000,000 (which assignment shall be of an equal percentage
of the Commitment, the Loans and outstanding Letters of Credit unless otherwise
agreed to by the Agent) to additional banks or other financial institutions with
the prior written approval of the Agent and, so long as no Default or Event of
Default has occurred and is continuing, the Borrowers, which approvals shall not
be unreasonably withheld. Any Bank may at any time, and from time to time,
assign to any branch, lending office, or affiliate of such Bank all or any part
of its rights and obligations under the Loan Documents by notice to the Agent
and the Borrowers. It is further agreed that each bank or other financial
institution which executes and delivers to the Agent and the Borrowers hereunder
an Assignment and Acceptance substantially in the form of Exhibit E hereto
together with an assignment fee in the amount of $3,500 payable by the assigning
Bank to the Agent, shall, on the date specified in such Assignment and
Acceptance, become a party to this Agreement and the other Loan Documents for
all purposes of this Agreement and the other Loan Documents, and its portion of
the Commitment, the Loans and Letters of Credit shall be as set forth in such
Assignment and Acceptance. The Bank assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement. Upon the execution and delivery of such
Assignment and Acceptance, (a) the Borrowers shall issue to the bank or other
financial institution a Note in the amount of such bank's or other financial
institution's Commitment dated the date of the assignment or such other date as
may be specified by the Agent and otherwise completed in substantially the form
of Exhibit A and to the extent any assigning Bank has retained a portion of its
obligations hereunder, an appropriate replacement Note to the assigning Bank
reflecting its assignment; (b) the Agent shall distribute to the Borrowers, the
Banks and such bank or financial institution a schedule reflecting such changes;
and (c) this Agreement shall be appropriately amended to reflect (i) the status
of the bank or financial institution as a party hereto and (ii) the status and
rights of the Banks hereunder.
Each Bank shall also have the right to grant participations to one or more
banks or other financial institutions in its Commitment, the Loans and
outstanding Letters of Credit. The documents evidencing any such participation
shall limit such participating bank or financial institutions voting rights with
respect to this Agreement to the matters set forth in ss.14.8 which require the
vote of all Banks.
Notwithstanding the foregoing, no assignment or participation shall operate
to increase the Total Commitment hereunder or otherwise alter the substantive
terms of this Agreement. Without the prior consent of the Agent and the
Borrowers, no Bank which retains a Commitment hereunder shall have a Commitment
of less than $5,000,000, as such amount may be reduced upon reductions in the
Total Commitment pursuant to ss.2.2 hereof.
Anything contained in this ss.17 to the contrary notwithstanding, any Bank
may at any time pledge all or any portion of its interest and rights under this
Agreement (including all or any portion of its Notes) to any of the twelve
Federal Reserve Lenders organized under ss.4 of the Federal Reserve Act, 12
U.S.C. ss.341. No such pledge or the enforcement thereof shall release the
pledgor Lender from its obligations hereunder or under any of the other Loan
Documents.
ss.18. PARTIES IN INTEREST. All the terms of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto and
thereto; provided that no Borrower shall assign or transfer its rights hereunder
without the prior written consent of the Banks.
ss.19. NOTICES, ETC.
ss.19.1. Notices. Except as otherwise expressly provided in this Agreement,
all notices and other communications made or required to be given pursuant to
this Agreement or the other Loan Documents shall be in writing and shall be
delivered in hand, mailed by United States first-class mail, postage prepaid, or
sent by telecopier and confirmed by letter, addressed as follows:
(a) if to the Borrowers, at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx
00000-0000, Attention: Xxxxx X. Xxxxxxx; Senior Vice President & Chief Financial
Officer, telecopy number (000) 000-0000, with a copy to the Legal Department of
the Borrowers at the same address, telecopy number (000) 000-0000;
(b) if to the Agent or BKB, at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx, Vice President, telecopy
number 000-000-0000;
or such other address for notice as shall have last been furnished in
writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (a) if delivered by hand to a responsible officer
of the party to which it is directed, at the time of the receipt thereof by such
officer, (b) if sent by registered or certified first-class mail, postage
prepaid, five Business Days after the posting thereof, and (c) if sent by
telecopier, at the time of the dispatch thereof with answer-back confirmation,
if in normal business hours in the country of receipt, or otherwise at the
opening of business on the following Business Day.
ss.19.2. Deemed Notice. Except for notice of the occurrence of any Default
or Event of Default required pursuant to ss.6.14 hereof, the Agent and the Banks
shall be deemed to have received notice of any matter disclosed in the filings
of the Parent with the United States Securities and Exchange Commission at the
time such filing are delivered to the Banks.
ss.20. MISCELLANEOUS. The rights and remedies herein expressed are
cumulative and not exclusive of any other rights which the Banks or Agent would
otherwise have. The captions in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof. This Agreement and any
amendment hereof may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one instrument. In proving
this Agreement it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom enforcement is sought.
ss.21. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except as provided in ss.14.8. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or omission on the part of the Agent or any Bank in exercising
any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon the Borrowers shall entitle the Borrowers to other
or further notice or demand in similar or other circumstances.
ss.22. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS HEREBY WAIVES ITS RIGHT
TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH BORROWER HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE
PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWERS (a)
CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (b)
ACKNOWLEDGE THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BECAUSE OF, AMONG
OTHER THINGS, THE BORROWERS' WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
ss.23. GOVERNING LAW. THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS
(OTHER THAN THE INTERNATIONAL PLEDGE DOCUMENTS DEFINED IN THE SINTEL STOCK
PLEDGE AGREEMENT) ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). THE BORROWERS CONSENT TO THE JURISDICTION OF ANY OF
THE FEDERAL OR STATE COURTS LOCATED IN THE COMMONWEALTH OF MASSACHUSETTS IN
CONNECTION WITH ANY SUIT TO ENFORCE THE RIGHTS OF ANY BANK OR THE AGENT UNDER
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
ss.24. SEVERABILITY. The provisions of this Agreement are severable and if
any one clause or provision hereof shall be held invalid or unenforceable in
whole or in part in any jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in any
other jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
under seal as of the date first set forth above.
THE BORROWERS:
MASTEC, INC.
By:______________________________________________
Title:___________________________________________
B & D CONTRACTORS OF SHELBY, INC.
BURNUP & XXXX OF TEXAS, INC.
BURNUP & XXXX OF THE CAROLINAS, INC.
XXXXXXXX-XXXXXX CO., INC.
UTILITY PRECAST, INC.
BURNUP & XXXX TELCOM OF FLORIDA, INC.
BURNUP & XXXX TSI, INC.
CHURCH & TOWER ENVIRONMENTAL, INC.
CHURCH & TOWER FIBER TEL, INC.
CHURCH & TOWER, INC.
CHURCH & TOWER OF FLORIDA, INC.
CHURCH & TOWER OF TN, INC.
DESIGNED TRAFFIC INSTALLATION CO.
GDSI, INC.
XXXXXXX CABLE CONSTRUCTION, INC.
LATLINK CORPORATION
LATLINK ARGENTINA, INC.
MASTEC COMTEC OF CALIFORNIA, INC.
MASTEC COMTEC OF THE CAROLINAS, INC.
MASTEC TECHNOLOGIES, INC.
MASTEC TELEPORT, INC.
X.X. XXXXX & ASSOCIATES, INC.
X.X. XXXXX AND ASSOCIATES, INC. OF VIRGINIA
SHANCO CORPORATION
UTILITY LINE MAINTENANCE, INC.
By:______________________________________________
Title:___________________________________________
THE BANKS:
CREDITANSTALT-BANKVEREIN
By:______________________________________________
Title:___________________________________________
By:______________________________________________
Title:___________________________________________
FIRST UNION NATIONAL BANK OF FLORIDA
By:______________________________________________
Title:___________________________________________
THE SUMITOMO BANK, LIMITED
By:______________________________________________
Title:___________________________________________
By:______________________________________________
Title:___________________________________________
SCOTIABANC INC.
By:______________________________________________
Title:___________________________________________
THE FUJI BANK AND TRUST COMPANY
By:______________________________________________
Title:___________________________________________
COMERICA BANK
By:______________________________________________
Title:___________________________________________
LTCB TRUST COMPANY
By:______________________________________________
Title:___________________________________________
BANKBOSTON, N.A.,
individually and as Agent
By:______________________________________________
Title:___________________________________________
