1
EXHIBIT 10.37
TERM LOAN CREDIT AGREEMENT
Dated as of November 5, 1999
among
RAILWORKS CORPORATION,
as Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE LENDERS NAMED HEREIN,
FIRST UNION NATIONAL BANK,
as Documentation Agent
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
2
TABLE OF CONTENTS
SECTION 1 DEFINITIONS.............................................................................................1
1.1 Definitions.....................................................................................1
1.2 Computation of Time Periods.....................................................................7
SECTION 2 CREDIT FACILITIES.......................................................................................7
2.1 Term Loan.......................................................................................7
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES..........................................................9
3.1 Default Rate....................................................................................9
3.2 Extension and Conversion........................................................................9
3.3 Prepayments....................................................................................10
3.4 [Intentionally Omitted]........................................................................10
3.5 Fees...........................................................................................10
3.6 Capital Adequacy...............................................................................11
3.7 Inability To Determine Interest Rate...........................................................11
3.8 Illegality.....................................................................................11
3.9 Requirements of Law............................................................................12
3.10 Taxes..........................................................................................13
3.11 Indemnity......................................................................................14
3.12 Certain Limitations............................................................................15
3.13 Pro Rata Treatment.............................................................................16
3.14 Sharing of Payments............................................................................16
3.15 Payments, Computations, Etc....................................................................17
3.16 Evidence of Debt...............................................................................19
SECTION 4 GUARANTY...............................................................................................19
4.1 The Guarantee..................................................................................19
4.2 Obligations Unconditional......................................................................20
4.3 Reinstatement..................................................................................21
4.4 Certain Additional Waivers.....................................................................21
4.5 Remedies.......................................................................................21
4.6 Rights of Contribution.........................................................................22
4.7 Continuing Guarantee...........................................................................22
SECTION 5 CONDITIONS.............................................................................................23
5.1 Conditions to Closing..........................................................................23
5.2 Conditions to All Extensions of Credit.........................................................24
SECTION 6 REPRESENTATIONS, WARRANTIES AND COVENANTS..............................................................24
6.1 Incorporation..................................................................................24
6.2 Additional Representations.....................................................................25
6.3 Additional Covenants...........................................................................25
i
3
SECTION 7 EVENTS OF DEFAULT......................................................................................26
7.1 Events of Default..............................................................................26
7.2 Acceleration; Remedies.........................................................................28
SECTION 8 AGENCY PROVISIONS......................................................................................29
8.1 Appointment....................................................................................29
8.2 Delegation of Duties...........................................................................29
8.3 Exculpatory Provisions.........................................................................29
8.4 Reliance on Communications.....................................................................30
8.5 Notice of Default..............................................................................30
8.6 Non-Reliance on Administrative Agent and Other Lenders.........................................31
8.7 Indemnification................................................................................31
8.8 Administrative Agent in its Individual Capacity................................................32
8.9 Successor Administrative Agent.................................................................32
8.10 Intercreditor Agreement........................................................................32
SECTION 9 MISCELLANEOUS..........................................................................................33
9.1 Notices........................................................................................33
9.2 Right of Set-Off...............................................................................34
9.3 Benefit of Agreement...........................................................................34
9.4 No Waiver; Remedies Cumulative.................................................................37
9.5 Payment of Expenses, etc.......................................................................37
9.6 Amendments, Waivers and Consents...............................................................38
9.7 Counterparts...................................................................................39
9.8 Headings.......................................................................................39
9.9 Survival.......................................................................................39
9.10 Governing Law; Submission to Jurisdiction; Venue...............................................39
9.11 Severability...................................................................................40
9.12 Entirety.......................................................................................40
9.13 Binding Effect; Termination....................................................................40
9.14 Confidentiality................................................................................41
9.15 Source of Funds................................................................................41
9.16 Conflict.......................................................................................42
ii
4
SCHEDULES
Schedule 2.1(a) Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Term Note
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(d)(iii) Form of Officer's Certificate
Schedule 6.3(b) Form of Joinder Agreement
Schedule 8.10 Form of Intercreditor Agreement
Schedule 9.1 Lenders and Addresses
Schedule 9.3(b) Form of Assignment and Acceptance
iii
5
TERM LOAN CREDIT AGREEMENT
THIS TERM LOAN CREDIT AGREEMENT dated as of November 5, 1999 (the
"Credit Agreement"), is by and among RAILWORKS CORPORATION, a Delaware
corporation (the "Borrower"), the Subsidiaries of the Borrower identified as
Guarantors on the signature pages hereto and such other Subsidiaries of the
Borrower as may from time to time become Guarantors hereunder in accordance with
the provisions hereof (the "Guarantors"), the lenders named herein and such
other lenders as may become a party hereto (the "Lenders"), FIRST UNION NATIONAL
BANK, as Documentation Agent, and BANK OF AMERICA, N.A., as Administrative Agent
(in such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Lenders provide a US$30
million term loan credit facility for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested term loan credit
facility available to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
Terms used in this Credit Agreement (including the Incorporated
Representations and the Incorporated Covenants) but not otherwise defined in
this Credit Agreement shall have the meanings assigned to such terms in the
Revolving Credit Agreement. As used in this Credit Agreement (including the
Incorporated Representations, the Incorporated Covenants and any definitions
incorporated herein from the Revolving Credit Agreement pursuant to the
foregoing sentence), the following terms shall have the meanings specified below
unless the context otherwise requires:
"Administrative Agent" shall have the meaning assigned to such
term in the heading hereof, together with any successors or assigns.
"Administrative Agent's Fee Letter" means that certain letter
agreement dated as of September 29, 1999, between the Administrative
Agent and the Borrower, as amended, modified, supplemented or replaced
from time to time.
"Administrative Agent's Fees" shall have the meaning assigned
to such term in Section 3.5.
6
"Agents" means the Administrative Agent and the Collateral
Agent.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for
any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means RailWorks Corporation, a Delaware
corporation, as referenced in the opening paragraph, and its successors
and permitted assigns.
"Closing Date" means the date hereof.
"Collateral Agent" means Bank of America, N.A., and its
successors in such capacity.
"Commitment" means the Term Loan Commitment.
"Consolidated Group" means the Borrower and its consolidated
subsidiaries as determined in accordance with GAAP.
"Credit Documents" means a collective reference to this Credit
Agreement, the Term Notes, the Pledge Agreement, the Security
Agreement, the Intercreditor Agreement, each Joinder Agreement, the
Administrative Agent's Fee Letter, and all other related agreements and
documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (i) has failed to make an Extension of Credit required
pursuant to the terms of this Credit Agreement, (ii) has failed to pay
to the Agents or any Lender an amount owed by such Lender pursuant to
the terms of the Credit Agreement or any other of the Credit
2
7
Documents, or (iii) has been deemed insolvent or has become subject to
a bankruptcy or insolvency proceeding or to a receiver, trustee or
similar proceeding.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under any regulations of the Board of Governors of the Federal
Reserve System (or any successor) as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by reference to
which the interest rate of Eurodollar Loans is determined), whether or
not Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject
to reserve requirements without benefits of credits for proration,
exceptions or offsets that may be available from time to time to a
Lender. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" means such term as defined in Section 7.1.
"Extension of Credit" means, as to any Lender, the making of,
or participation in, a Loan by such Lender.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding
such day, provided that (A) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Business Day and (B) if no such rate is so
published on such next preceding Business Day, the Federal Funds Rate
for such day shall be the average rate quoted to the Administrative
Agent on such day on such transactions as determined by the
Administrative Agent.
3
8
"Guarantor" means each of those other Persons identified as a
"Guarantor" on the signature pages hereto, and each other Person which
may hereafter become a Guarantor by execution of a Joinder Agreement,
together with their successors and permitted assigns.
"Guaranteed Obligations" means, as to each Guarantor, without
duplication, (i) all obligations of the Borrower (including interest
accruing after a Bankruptcy Event, regardless of whether such interest
is allowed as a claim under the Bankruptcy Code) to the Lenders and the
Agents, whenever arising, under this Credit Agreement, the Term Notes
or the other Credit Documents, and (ii) all liabilities and
obligations, whenever arising, owing from the Borrower to any Lender,
or any Affiliate of a Lender, arising under any Hedging Agreement to
the extent permitted hereunder.
"Hedging Agreement" means any interest rate protection
agreement or foreign currency exchange agreement between the Borrower
and any Lender, or any Affiliate of a Lender, relating to the Term
Loan.
"Incorporated Covenants" means such term as defined in Section
6.1.
"Incorporated Representations" means such term as defined in
Section 6.1.
"Interbank Offered Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) equal to the rate of interest, determined by the Administrative
Agent on the basis of the offered rates for deposits in U.S. Dollars
for a period of time corresponding to such Interest Period (and
commencing on the first day of such Interest Period), appearing on
Telerate Page 3750 (or, if, for any reason, Telerate Page 3750 is not
available, the Reuters Screen LIBO Page) as of approximately 11:00 A.M.
(London time) two (2) Business Days before the first day of such
Interest Period. As used herein, "Telerate Page 3750" means the display
designated as page 3750 by Dow Xxxxx Markets, Inc. (or such other page
as may replace such page on that service for the purpose of displaying
the British Bankers Association London interbank offered rates) and
"Reuters Screen LIBO Page" means the display designated as page "LIBO"
on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBO page on that service for the purpose of displaying
London interbank offered rates of major banks).
"Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of the date hereof by and among Bank of America,
N.A., as collateral agent under the Revolving Credit Agreement, Bank of
America, N.A., as collateral agent under this Credit Agreement, and the
Credit Parties, as amended or modified from time to time, in
substantially the form of Schedule 8.10.
"Interest Payment Date" means (i) as to any Base Rate Loan,
the last day of each March, June, September and December and the date
on which the final principal
4
9
amortization payment is made and (ii) as to any Eurodollar Loan, the
last day of each Interest Period for such Loan, the date of repayment
of principal of such Loan and on the date the final principal
amortization payment is made, and in addition where the applicable
Interest Period is more than three months, then also on the date three
months from the beginning of the Interest Period, and each three months
thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Schedule 6.3(b), executed and delivered by a Domestic
Subsidiary of the Borrower in accordance with the provisions of Section
6.3(b).
"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and their successors and assigns.
"Loan" or "Loans" means the Term Loan and the Base Rate Loans
and Eurodollar Loans comprising the Term Loan.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets or liabilities of the Consolidated Group taken as a whole, (ii)
the ability of the Credit Parties taken as a whole to perform any
material obligation under the Credit Documents or (iii) the rights and
remedies of the Lenders under the Credit Documents.
"Net Proceeds" means gross cash proceeds (including any cash
received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received in
connection with an Equity Transaction or Debt Transaction, net of (i)
reasonable transaction costs, including in the case of an Equity
Transaction or a Debt Transaction, underwriting discounts and
commissions, (ii) estimated taxes payable in connection therewith, and
(iii) in the case of a Debt Transaction, any amounts payable in respect
of Subordinated Debt, including without limitation principal, interest,
premiums and penalties, which is secured by, or otherwise related to,
any property or asset which is the subject thereof to the extent that
such Subordinated Debt and any payments in respect thereof are paid
with a portion of the proceeds therefrom.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).
"Notice of Extension/Conversion" means a written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Participation Interest" means the purchase by a Lender of a
participation in Loans as provided in Section 3.14.
5
10
"Pledge Agreement" means the pledge agreement dated as of the
Closing Date given by the Borrower and certain Domestic Subsidiaries of
the Borrower identified therein to the Collateral Agent to secure the
obligations of the Credit Parties under the Credit Documents, as such
pledge agreement may be amended and modified from time to time.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina, with each
change in the Prime Rate being effective on the date such change is
publicly announced as effective (it being understood and agreed that
the Prime Rate is a reference rate used by Bank of America in
determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged on any extension of credit by Bank
of America to any debtor).
"Register" shall have the meaning given such term in Section
9.3(c).
"Required Lenders" means, at any time, Lenders having more
than fifty percent (50%) of the aggregate principal amount of the Term
Loan outstanding (taking into account in each case Participation
Interests or obligation to participate therein); provided that the
outstanding principal amount of the Term Loan (taking into account
Participation Interests therein) owing to a Defaulting Lender shall be
excluded for purposes hereof in making a determination of Required
Lenders.
"Revolving Credit Agreement" means that certain Amended and
Restated Credit Agreement dated as of August 5, 1999 by and among the
Borrower, the subsidiaries of the Borrower identified therein, the
lenders party thereto, First Union National Bank, as Documentation
Agent, Bank of America Canada, as Canadian Administrative Agent, and
Bank of America, N.A., as Domestic Administrative Agent, as amended,
modified, supplemented, extended, renewed or replaced from time to
time.
"Security Agreement" means the security agreement dated as of
the Closing Date given by the Credit Parties to the Collateral Agent to
secure the obligations of the Credit Parties under the Credit
Documents, as such security agreement may be amended and modified from
time to time.
"Term Loan" shall have the meaning assigned to such term in
Section 2.1(a).
"Term Loan Commitment" means, with respect to each Lender, the
commitment of such Lender to make its Term Loan Commitment Percentage
of the Term Loan (and for purposes of making determinations of Required
Lenders after the Closing Date, such Lender's Term Loan Commitment
Percentage of the aggregate principal amount outstanding on the Term
Loan).
"Term Loan Commitment Percentage" means, for each Lender, a
fraction (expressed as a percentage) the numerator of which is the Term
Loan Committed Amount of such Lender at such time and the denominator
of which is the aggregate of the Term
6
11
Loan Committed Amounts of all the Lenders at such time. The initial
Term Loan Commitment Percentage of each Lender is set forth on Schedule
2.1(a).
"Term Loan Committed Amount" means, with respect to each
Lender, the amount of such Lender's Term Loan Commitment (and for
purposes of making determinations of Required Lenders after the Closing
Date, such Lender's portion of the principal amount outstanding on the
Term Loan), as such amount may be reduced from time to time in
accordance with the provisions hereof. The initial Term Loan Committed
Amount of each Lender is set forth on Schedule 2.1(a).
"Term Note" or "Term Notes" means the promissory notes of the
Borrower in favor of each of the Lenders evidencing the Term Loan in
substantially the form attached as Schedule 2.1(e), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the
word "from" means "from and including" and the words "to" and "until" each mean
"to but excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis.
SECTION 2
CREDIT FACILITIES
2.1 Term Loan.
(a) Term Loan Commitment. Subject to the terms and conditions
hereof, on the Closing Date each Lender severally agrees to make its Term Loan
Commitment Percentage of a term loan (the "Term Loan") in the aggregate
principal amount of THIRTY MILLION DOLLARS (US$30,000,000) in no more than two
advances to the Borrower in U.S. Dollars for the purposes hereinafter set forth.
The Term Loan may consist of Base Rate Loans or Eurodollar Loans, or a
combination thereof, as the Borrower may request. Amounts repaid on the Term
Loan may not be reborrowed.
(b) Term Loan Borrowing. The Borrower shall submit an appropriate
Notice of Borrowing relating to the Term Loan not later than 11:00 A.M.
(Charlotte, North Carolina time) on the date of the requested borrowing, with
respect to the portion of the Term Loan initially consisting of a Base Rate
Loan, or on the third Business Day prior to the date of the requested
7
12
borrowing, with respect to the portion of the Term Loan initially consisting of
one or more Eurodollar Loans, which Notice of Borrowing shall be irrevocable and
shall specify (i) that the funding of the Term Loan is requested, (ii) the date
of the requested borrowing, (iii) the principal amount of the requested
borrowing, and (iv) whether the funding of the Term Loan shall be comprised of
Base Rate Loans, Eurodollar Loans or combination thereof, and if Eurodollar
Loans are requested, the Interest Period(s) therefor. Each Lender shall make its
Term Loan Commitment Percentage of the Term Loan available to the Administrative
Agent for the account of the Borrower, or in such other manner as the
Administrative Agent may specify in writing, by 1:00 P.M. (Charlotte, North
Carolina time) on the date of the requested borrowing in U.S. Dollars and in
funds immediately available to the Administrative Agent.
(c) Minimum Amounts. The Loans shall be in minimum aggregate
principal amounts of US$2,500,000 and integral multiples of US$500,000 in excess
thereof, in the case of Eurodollar Loans, and US$100,000 (or the remaining
portion of the outstanding principal amount of the Term Loan, if less) and
integral multiples of US$50,000 in excess thereof, in the case of Base Rate
Loans.
(d) Repayment. The aggregate principal amount of the Term Loan shall be
due and payable in twenty (20) consecutive quarterly installments as follows:
Principal Principal
Amortization Amortization
Payment Payment
as a Percentage of as a Percentage of
Original Principal Original Principal
Date Amount Date Amount
---- ------ ---- ------
February 5, 2000 0.25% August 5, 2002 0.25%
May 5, 2000 0.25% November 5, 2002 0.25%
August 5, 2000 0.25% February 5, 2003 0.25%
November 5, 2000 0.25% May 5, 2003 0.25%
February 5, 2001 0.25% August 5, 2003 0.25%
May 5, 2001 0.25% November 5, 2003 0.25%
August 5, 2001 0.25% February 5, 2004 24.00%
November 5, 2001 0.25% May 5, 2004 24.00%
February 5, 2002 0.25% August 5, 2004 24.00%
May 5, 2002 0.25% November 5, 2004 24.00%
-------
Total 100.00%
(e) Interest. Subject to the provisions of Section 3.1,
(i) Base Rate Loans. During such periods as the Term Loan
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Base
Rate plus 200 basis points (2.00%); and
8
13
(ii) Eurodollar Loans. During such periods as the Term
Loan shall be comprised in whole or in part of Eurodollar Loans, such
Eurodollar Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate plus 375 basis points (3.75%).
Interest on the Term Loan shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(f) Term Notes. The Term Loan shall be evidenced by a duly
executed Term Note in favor of each Lender.
(g) Maximum Number of Eurodollar Loans. The Borrower will be
limited to a maximum number of five (5) Eurodollar Loans outstanding at any
time. For purposes hereof, Eurodollar Loans with separate or different Interest
Periods will be considered as separate Eurodollar Loans even if their Interest
Periods expire on the same date.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2% greater than the
rate which would otherwise be applicable (or if no rate is applicable, whether
in respect of interest, fees or other amounts, then 2% greater than the Base
Rate).
3.2 Extension and Conversion.
Subject to the terms of Section 5.2, the Borrower shall have the
option, on any Business Day, to extend existing Eurodollar Loans into a
subsequent permissible Interest Period or to convert Base Rate Loans into
Eurodollar Loans; provided, however, that (i) except as provided in Section 3.8,
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (ii) Eurodollar Loans may be extended,
and Base Rate Loans may be converted into Eurodollar Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion,
(iii) Loans extended as, or converted into, Eurodollar Loans shall be subject to
the terms of the definition of "Interest Period" and shall be in such minimum
amounts as provided in Section 2.1(c), and (iv) any request for extension or
conversion of a Eurodollar Loan which shall fail to specify an Interest Period
shall be deemed to be a request for an Interest Period of one month. Each such
extension or conversion shall be effected by the Borrower by giving a Notice of
Extension/Conversion (or telephone notice promptly confirmed in writing) to the
Administrative Agent prior to 11:00 A.M. (Charlotte, North Carolina time) on the
Business Day of, in the case of the conversion of a Eurodollar Loan into a Base
Rate Loan, and on the third Business Day prior to, in the case of the extension
of a Eurodollar Loan as, or conversion of a Base Rate
9
14
Loan into, a Eurodollar Loan, the date of the proposed extension or conversion,
specifying the date of the proposed extension or conversion, the Loans to be so
extended or converted, the types of Loans into which such Loans are to be
converted and, if appropriate, the applicable Interest Periods with respect
thereto. Each request for extension of a Eurodollar Loan or conversion of a
Base Rate Loan into a Eurodollar Loan shall be irrevocable and shall constitute
a representation and warranty by the Borrower of the matters specified in
subsections (a) and (b) of Section 5.2. In the event the Borrower fails to
request extension or conversion of any Eurodollar Loan in accordance with this
Section, or any such conversion or extension is not permitted or required by
this Section, then such Eurodollar Loan shall be automatically converted into a
Base Rate Loan at the end of the Interest Period applicable thereto. The
Administrative Agent shall give each Lender notice as promptly as practicable
of any such proposed extension or conversion affecting any Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. Loans may be repaid in whole or in part
without premium or penalty; provided that (i) Eurodollar Loans may be prepaid
only upon three (3) Business Days' prior written notice to the Administrative
Agent and must be accompanied by payment of any amounts owing under Section
3.11, and (ii) partial prepayments shall be (A) in the case of Eurodollar Loans,
in a minimum aggregate principal amount of US$2,500,000 and integral multiples
of US$500,000 in excess thereof and (B) in the case of Base Rate Loans, in a
minimum aggregate principal amount of US$100,000 and integral multiples of
US$50,000 in excess thereof.
(b) Mandatory Prepayments. If at any time the aggregate principal
Dollar Amount of Obligations plus the aggregate principal amount of the Term
Loan shall exceed the Borrowing Base, the Borrower shall immediately make
payment on the Term Loan and/or on the loans and other extensions of credit
outstanding under the Revolving Credit Agreement in an amount sufficient to
eliminate the excess.
(c) Application. Unless otherwise specified by the Borrower,
amounts prepaid on the Term Loan shall be applied first to Base Rate Loans, then
to Eurodollar Loans in direct order of Interest Period maturities. Amounts
prepaid on the Term Loan shall serve to reduce remaining principal installment
payments ratably and may not be reborrowed.
3.4 [Intentionally Omitted].
3.5 Fees.
The Borrower agrees to pay to the Administrative Agent, for its own
account, the annual administrative fee and such other fees, if any, referred to
in the Administrative Agent's Fee Letter (collectively, the "Administrative
Agent's Fees").
10
15
3.6 Capital Adequacy.
If any Lender has reasonably determined, after the date hereof, that
the adoption or the becoming effective of, or any change in, or any change by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy), then,
subject to the provisions of Section 3.12, the Borrower shall be obligated to
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
3.7 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined (which determination shall be conclusive and binding
upon the Borrower) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, the Administrative Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter (which notice shall be withdrawn the Administrative Agent
whenever such circumstances no longer exist). If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans and (b) any Loans that were to have been
converted on the first day of such Interest Period to or continued as Eurodollar
Loans shall be converted to or continued as Base Rate Loans. Until such notice
has been withdrawn by the Administrative Agent, no further Eurodollar Loans
shall be made or continued as such, nor shall the Borrower have the right to
convert Base Rate Loans to Eurodollar Loans.
3.8 Illegality.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Borrower
and the Administrative Agent (which notice shall be withdrawn by such Lender
whenever such circumstances no longer exist), (b) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert a Base Rate Loan to Eurodollar Loans shall forthwith be canceled and,
until such time as it shall no longer be unlawful for such Lender to make or
maintain Eurodollar Loans, such Lender shall then have a commitment only to make
a Base Rate Loan when a Eurodollar Loan is requested and (c) such Lender's Loans
then outstanding as Eurodollar Loans, if any, shall be converted automatically
to Base Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurodollar Loan occurs on a day
11
16
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 3.11.
3.9 Requirements of Law.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Closing Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind whatsoever
with respect to any Eurodollar Loans made by it or its obligation to make
Eurodollar Loans, or change the basis of taxation of payments to such Lender in
respect thereof (except for (i) Taxes covered by Section 3.10 (including Taxes
imposed solely by reason of any failure of such Lender to comply with its
obligations under Section 3.10(d)) and (ii) changes in taxes measured by or
imposed upon the overall net income, or franchise tax (imposed in lieu of such
net income tax), of such Lender or its applicable lending office, branch, or any
affiliate thereof));
(b) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the
Eurodollar Rate hereunder; or
(c) shall impose on such Lender any other condition (excluding any
tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, subject to the provisions
of Section 3.12, the Borrower shall be obligated to promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable, provided that, in any such
case, the Borrower may elect to convert the Eurodollar Loans made by such Lender
hereunder to Base Rate Loans by giving the Administrative Agent at least one
Business Day's notice of such election, in which case the Borrower shall
promptly pay to such Lender, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 3.11. Each Lender agrees that, as
promptly as practicable after it becomes aware of any circumstances of the type
referred to in paragraphs (a) through (c) above which would result in any such
increased cost or reduced amount receivable, the affected Lender shall, to the
extent not inconsistent with such Lender's internal policies of general
application, designate a different lending office for the making of Loans
hereunder or otherwise use reasonable commercial efforts to minimize the amounts
payable to it by the Borrower pursuant to this Section 3.9. This covenant shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
12
17
3.10 Taxes.
(a) Any and all payments by any Credit Party to or for the account
of any Lender or the Administrative Agent hereunder or under any other Credit
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Lender (or its applicable lending office) or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof (all such
non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings,
and liabilities being hereinafter referred to as "Taxes"). If any Credit Party
shall be required by law to deduct or withhold any Taxes from or in respect of
any sum payable under this Credit Agreement or any other Credit Document to any
Lender or the Administrative Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable
under this Section 3.10) such Lender or the Administrative Agent receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Credit Party shall make such deductions and withholdings, (iii) such
Credit Party shall pay the full amount deducted or withheld to the relevant
taxation authority or other authority in accordance with applicable law, and
(iv) such Credit Party shall furnish to the Administrative Agent, in each case
at its address referred to in Section 9.1, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Credit
Agreement or any other Credit Document or from the execution or delivery of, or
otherwise with respect to, this Credit Agreement or any other Credit Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.10) paid by such Lender or
the Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender that is not a United States person under Section
7701(a)(30) of the Internal Revenue Code, on or prior to the date of its
execution and delivery of this Credit Agreement in the case of each Lender
listed on the signature pages hereto and on or prior to the date on which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrowers or the Administrative Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with (i) Internal Revenue Service Form
W-8 BEN or W-8 ECI, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which reduces
to zero the rate of withholding tax on payments of interest or certifying that
13
18
the income receivable pursuant to this Credit Agreement is effectively connected
with the conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and/or (iii) any other form or
certificate required by any taxing authority (including any certificate required
by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that
such Lender is entitled to an exemption from tax on payments pursuant to this
Credit Agreement or any of the other Credit Documents.
(e) For any period with respect to which a Lender has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to Section 3.10(d) (unless such failure is due to a change in treaty,
law, or regulation occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be entitled to
indemnification under Section 3.10(a) or 3.10(b) with respect to Taxes imposed
by the United States; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(f) If any Credit Party is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 3.10, then such Lender
will agree to use reasonable efforts to change the jurisdiction of its
applicable lending office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the applicable Credit Party shall furnish to the Administrative Agents
the original or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of
the Credit Parties hereunder, the agreements and obligations of the Credit
Parties contained in this Section 3.10 shall survive the repayment of the Loans
and other obligations under the Credit Documents and the termination of the
Commitments hereunder.
3.11 Indemnity.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making of a prepayment of Eurodollar Loans on a
day which is not the last day of an Interest Period with respect thereto. With
respect to Eurodollar Loans, such indemnification may be calculated, in lieu of
any other method, based on an amount equal to the excess, if any, of (i) the
amount of interest
14
19
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Loans provided for herein over (ii) the
amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. The
covenants of the Borrower set forth in this Section 3.11 shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.12 Certain Limitations.
The provisions of Sections 3.6, 3.9, 3.10 and 3.11 hereof shall be
subject to the following:
(a) Each Lender that desires compensation or indemnification under
Sections 3.6, 3.9 or 3.11 hereof shall notify the Borrower through the
Administrative Agent of any event occurring after the Closing Date entitling
such Lender to compensation or indemnification under any of such Sections as
promptly as practicable, but in any event within 90 days after the occurrence of
the event giving rise thereto; provided that (i) if any such Lender fails to
give such notice within 90 days after the occurrence of such an event, such
Lender shall only be entitled to compensation or indemnification in respect of
such event accruing under Sections 3.6, 3.9 or 3.11 hereof with respect to the
period from and after the date 90 days prior to the date that such Lender does
give notice.
(b) Any notice given by a Lender pursuant to subsection (a) above
shall certify (i) that one of the events described in Sections 3.6, 3.9 or 3.11
hereof has occurred, describing in reasonable detail the nature of such event,
(ii) as to the increased cost, reduced amount receivable or loss or expense
resulting from such event and (iii) as to the additional amount demanded by such
Lender, attaching a reasonably detailed explanation of the calculation thereof.
Such a certificate as to any compensation or indemnification payable pursuant to
Sections 3.6, 3.9 or 3.11, submitted by such Lender through the Administrative
Agent to the Borrower, shall be conclusive and binding on the parties hereto in
the absence of manifest error.
(c) If any Lender requests compensation or indemnification from
the Borrower under Sections 3.6, 3.9 or 3.10 hereof, the Borrower may, at its
option, within fifteen (15) days after receipt by the Borrower of written demand
from the affected Lender for payment of such compensation or indemnification,
notify the Administrative Agent and such affected Lender of its intention to
replace the affected Lender. So long as no Event of Default shall have occurred
and be continuing, the Borrower may obtain, at the Borrower's expense, a
replacement Lender for the affected Lender. If the Borrower obtains a
replacement Lender within ninety (90) days following notice of its intention to
do so, the affected Lender must sell and assign its Loans and any related
Commitments to such replacement Lender pursuant to Section 9.3(b) hereof
(without giving effect to any requirement therein that the Administrative Agent
consent thereto), for an amount equal to the principal balance of all Loans held
by the affected Lender and all accrued
15
20
interest and Fees with respect thereto through the date of such sale, provided
that the Borrower shall have paid to such affected Lender the compensation or
indemnification that it is entitled to receive under Sections 3.6, 3.9 or 3.10
hereof, through the date of such sale and assignment. Notwithstanding the
foregoing, the Borrower shall not have the right to obtain a replacement Lender
if the affected Lender rescinds its demand for such compensation or
indemnification within fifteen (15) days following its receipt of the Borrower's
notice of intention to replace such affected Lender. Additionally, if the
Borrower gives a notice to the Administrative Agent and an affected Lender of
its intention to replace such affected Lender and does not so replace such
affected Lender within ninety (90) days thereafter, the Borrower's rights under
this Section 3.12(c) shall terminate and the Borrower shall promptly pay all
compensation or indemnification demanded by such affected Lender pursuant to
Sections 3.6, 3.9 or 3.10 hereof.
3.13 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each payment or prepayment of principal on the Term
Loan, each payment of interest on the Term Loan and each conversion or extension
of any Loan comprising the Term Loan, shall be allocated pro rata among the
Lenders in accordance with the respective principal amounts of their respective
Term Loan Commitment Percentages.
(b) Advances. No Lender shall be responsible for the failure or
delay by any other Lender in its obligation to make its ratable share of a
borrowing hereunder; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its ratable share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by such Lender within the time period specified therefor
hereunder, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the Federal Funds Rate for a
period of two (2) Business Days, and thereafter at the Base Rate, for the period
until such Lender makes such amount immediately available to the Administrative
Agent. If such Lender does not pay such amounts to the Administrative Agent
forthwith upon demand, the Administrative Agent may notify the Borrower and
request the Borrower to immediately pay such amount to the Administrative Agent
with interest at the rate applicable thereto. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error.
3.14 Sharing of Payments.
The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right of
setoff, banker's lien or counterclaim, or pursuant to a
16
21
secured claim under Section 506 of the Bankruptcy Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a participation in such Loans and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien or counterclaim,
with respect to such participation as fully as if such Lender were a holder of
such Loan or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any Lender or either
Agent shall fail to remit to an Agent or any other Lender an amount payable by
such Lender or such Agent to such Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to such Agent or such other Lender at a
rate per annum equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section 3.14 applies, such Lender shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders under this Section 3.14 to
share in the benefits of any recovery on such secured claim.
3.15 Payments, Computations, Etc.
(a) Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Administrative Agent in U.S. Dollars in
immediately available funds, without setoff, deduction, counterclaim or
withholding of any kind, at the Administrative Agent's office specified in
Section 9.1 not later than 2:00 P.M. (Charlotte, North Carolina time) on the
date when due. Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. The Administrative Agent may (but
shall not be obligated to) debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Borrower maintained
with the Administrative Agent (with notice to the Borrower). The Borrower shall,
at the time it makes any payment under this Credit Agreement, specify to the
Administrative Agent the Loans, Fees, interest or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that
it fails so to specify, or if such application would be inconsistent with the
terms hereof, the Administrative Agent shall distribute such payment to the
Lenders in such manner as the Administrative Agent may determine to be
appropriate in respect of obligations owing by the Borrower hereunder, subject
to the terms of Section 3.13(a)). The Administrative Agent will distribute such
payments to such Lenders, if any such payment is received prior to 12:00 Noon
(Charlotte, North Carolina time) on a Business Day in like funds as
17
22
received prior to the end of such Business Day and otherwise the Administrative
Agent will distribute such payment to such Lenders entitled thereto on the next
succeeding Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day (subject to accrual of interest and Fees for
the period of such extension), except that in the case of Eurodollar Loans, if
the extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations of interest
and fees shall be made on the basis of the actual number of days elapsed over a
year of 360 days, except with respect to computation of interest on Base Rate
Loans which (unless the Base Rate is determined by reference to the Federal
Funds Rate) shall be calculated based on a year of 365 or 366 days, as
appropriate. Interest shall accrue from and include the date of borrowing, but
exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding
any other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
the Term Loan or any other amounts outstanding under any of the Credit Documents
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agents in connection with enforcing the rights of the Lenders
under the Credit Documents;
SECOND, to payment of any Administrative Agent's Fees then
due and payable;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys' fees)
of each of the Lenders in connection with enforcing its rights under
the Credit Documents or otherwise with respect to the portion of the
Term Loan owing to such Lender;
FOURTH, to the payment of all accrued interest and Fees on or
in respect of the Term Loan;
FIFTH, to the payment of the outstanding principal amount of
the Term Loan;
SIXTH, to all other obligations which shall have become due
and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "SIXTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to
the next succeeding category; and (ii) each of the Lenders shall
receive an amount equal to its pro rata share (based on the proportion
18
23
that the then outstanding Term Loan held by such Lender bears to the
aggregate then outstanding Term Loan) of amounts available to be
applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH"
above.
3.16 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts evidencing
each Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Credit Agreement. Each Lender will make reasonable efforts to
maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant
to Section 9.3(c) hereof, and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any principal or
interest due and payable or to become due and payable to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
from or for the account of the Borrower and each Lender's share thereof. The
Administrative Agent will make reasonable efforts to maintain the accuracy of
the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain any such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay the Loans made by such Lender in
accordance with the terms hereof.
SECTION 4
GUARANTY
4.1 The Guarantee.
(a) Each of the Guarantors hereby jointly and severally guarantees
to each Lender, to each Affiliate of a Lender that enters into a Hedging
Agreement to the extent permitted hereunder, and to the Agents as hereinafter
provided, the prompt payment of the Guaranteed Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) strictly in accordance with the
terms thereof. The Guarantors hereby further agree that if any of the Guaranteed
Obligations are not paid in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due
19
24
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.
(b) Notwithstanding any provision to the contrary contained herein or
in any other of the Credit Documents or Hedging Agreements, to the extent the
obligations of a Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including, without limitation, because of any applicable state
or federal law relating to fraudulent conveyances or transfers) then the
obligations of each Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
4.2 Obligations Unconditional.
The obligations of the Guarantors under Section 4.1 hereof are joint
and several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor of the Guaranteed Obligations for amounts paid under this
Guaranty until such time as the Lenders (and any Affiliates of Lenders entering
into Hedging Agreements) have been paid in full, all Commitments under the
Credit Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds from the
Lenders in connection with monies received under the Credit Documents or Hedging
Agreements. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall
20
25
be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in
part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, either Agent or
any Lender or Lenders as security for any of the Guaranteed Obligations
shall fail to attach or be perfected; or
(v) any of the Guaranteed Obligations shall be determined
to be void or voidable (including, without limitation, for the benefit
of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of
any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that either Agent or any Lender exhaust any
right, power or remedy or proceed against any Person under any of the Credit
Documents, any Hedging Agreement or any other agreement or instrument referred
to in the Credit Documents or Hedging Agreements, or against any other Person
under any other guarantee of, or security for, any of the Guaranteed
Obligations.
4.3 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
each Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by such Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.4 Certain Additional Waivers.
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Guaranteed Obligations, except through the exercise
of the rights of subrogation pursuant to Section 4.2.
4.5 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agents and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 7.2 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 7.2)
for purposes of Section 4.1 hereof notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming
21
26
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Guaranteed Obligations being deemed to have
become automatically due and payable), the Guaranteed Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by the Guarantors for purposes of said Section 4.1.
4.6 Rights of Contribution.
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 4.6), pay to such Excess Funding Guarantor
an amount equal to such Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
arising under the other provisions of this Section 4 (hereafter, the "Guarantied
Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
Share of the Guarantied Obligations; (ii) "Excess Payment" shall mean, in
respect of any Guarantied Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guarantied Obligations; and
(iii) "Pro Rata Share", for the purposes of this Section 4.6, shall mean, for
any Guarantor, the ratio (expressed as a percentage) of (a) the amount by which
the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (b) the amount by which the
aggregate present fair saleable value of all assets and other properties of the
Borrower and all of the Guarantors exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Borrower and the Guarantors
hereunder) of the Borrower and all of the Guarantors, all as of the Closing Date
(if any Guarantor becomes a party hereto subsequent to the Closing Date, then
for the purposes of this Section 4.6 such subsequent Guarantor shall be deemed
to have been a Guarantor as of the Closing Date and the information pertaining
to, and only pertaining to, such Guarantor as of the date such Guarantor became
a Guarantor shall be deemed true as of the Closing Date).
4.7 Continuing Guarantee.
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.
22
27
SECTION 5
CONDITIONS
5.1 Conditions to Closing.
This Credit Agreement shall become effective, and the initial
Extensions of Credit may be made, upon the satisfaction of the following
conditions precedent:
(a) Execution of Credit Agreement and Credit Documents.
Receipt by the Administrative Agent of (i) multiple counterparts of this Credit
Agreement, (ii) a Term Note for each Lender, (iii) multiple counterparts of the
Pledge Agreement, (iv) multiple counterparts of the Security Agreement, (v)
multiple counterparts of the Intercreditor Agreement and (vi) UCC financing
statements relating to the Pledge Agreement and the Security Agreement, if any,
in each case executed by a duly authorized officer of each party thereto and in
each case conforming to the requirements of this Credit Agreement.
(b) Legal Opinions. Receipt of multiple counterparts of
opinions of counsel for the Credit Parties relating to the Credit Documents and
the transactions contemplated herein, in form and substance satisfactory to the
Administrative Agent and the Required Lenders.
(c) Absence of Legal Proceedings. The absence of any
action, suit, investigation or proceeding pending in any court or before any
arbitrator or governmental instrumentality which could reasonably be expected to
have a Material Adverse Effect.
(d) Corporate Documents. Receipt by the Administrative
Agent of the following (or their equivalent) for each of the Credit Parties:
(i) Resolutions. Copies of resolutions of the
Board of Directors approving and adopting the respective
Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a
secretary or assistant secretary as of the Closing Date to be
true and correct and in force and effect as of such date.
(ii) Good Standing. Copies, where applicable, of
(A) certificates of good standing, existence or its equivalent
certified as of a recent date by the appropriate governmental
authorities of the state of incorporation and the state in
which such Credit Party maintains its chief executive office
and (B) certificates indicating payment of all corporate
franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities of the state of
incorporation and the state in which such Credit Party
maintains its chief executive office.
(iii) Officer's Certificate. An officer's
certificate for each of the Credit Parties dated as of the
Closing Date substantially in the form of Schedule 5.1(d)(iii)
with appropriate insertions and attachments.
23
28
(e) Amendment No. 2 to Revolving Credit Agreement.
Receipt by the Administrative Agent of an executed copy of Amendment No. 2 to
the Revolving Credit Agreement, in form and substance satisfactory to the
Lenders hereunder.
(f) Fees. Receipt of by the Administrative Agent and the
Lenders of all fees, if any, owing pursuant to the Administrative Agent's Fee
Letter, Section 3.5 or otherwise.
(g) Subsection 5.2 Conditions. The conditions specified
in Section 5.2 shall be satisfied.
5.2 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Extension of Credit to be made hereunder) is subject to
the satisfaction of the following conditions precedent on the date of making
such Extension of Credit:
(a) Representations and Warranties. The representations
and warranties made by the Credit Parties herein and in the other Credit
Documents and which are contained in any certificate furnished at any time under
or in connection herewith shall be true and correct in all material respects on
and as of the date of such Extension of Credit as if made on and as of such date
(except for those which expressly relate to an earlier date and those which are
untrue solely as a result of a change permitted by this Agreement).
(b) No Default or Event of Default. No Default or Event
of Default shall have occurred and be continuing on such date or after giving
effect to the Extension of Credit to be made on such date unless such Default or
Event of Default shall have been waived in accordance with this Credit
Agreement.
(c) Section 2 Conditions. All conditions set forth in
Section 2 as to the making of the Term Loan shall have been satisfied.
Each request for an Extension of Credit (including extensions of
Eurodollar Loans and conversions of Base Rate Loans into Eurodollar Loans) and
each acceptance by the Borrower of an Extension of Credit (including extensions
of Eurodollar Loans and conversions of Base Rate Loans into Eurodollar Loans)
shall be deemed to constitute a representation and warranty by the Borrower as
of the date of such Extension of Credit that the applicable conditions in
paragraphs (a), (b) and (c) of this Section 5.2 have been satisfied.
24
29
SECTION 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 Incorporation.
The representations and warranties contained in Section 6 of the
Revolving Credit Agreement as in effect on the Closing Date (the "Incorporated
Representations") and the affirmative and negative covenants contained in
Sections 7 and 8, respectively, of the Revolving Credit Agreement as in effect
on the Closing Date (the "Incorporated Covenants") are incorporated herein by
reference with the same effect as if stated at length. The Credit Parties affirm
and represent and warrant to the Administrative Agent and the Lenders that the
Incorporated Representations are true and correct in all material respects as of
the date hereof (except for those which expressly relate to an earlier date and
those which are untrue solely as a result of a change permitted by the Revolving
Credit Agreement) and covenant and agree that the Incorporated Covenants shall
be as binding on the Credit Parties as if set forth fully herein, provided that
(i) the Incorporated Representations and the Incorporated Covenants shall run in
favor of the Agents and the Lenders hereunder (rather than the Agents and the
Lenders under the Revolving Credit Agreement as literally provided in the
Revolving Credit Agreement), (ii) in the event of the amendment or modification
of any of the affirmative and negative covenants contained in Sections 6 and 7
of the Revolving Credit Agreement, the Incorporated Covenants shall be as in
effect immediately prior to such amendment or modification, unless the requisite
Lenders hereunder consent to such amendment or modification in accordance with
the terms of Section 9.6 hereof, and (iii) in the event that the Revolving
Credit Agreement shall be refinanced, repaid, terminated or replaced by another
credit agreement, the Incorporated Covenants shall be as in effect immediately
prior to such refinancing or replacement.
6.2 Additional Representations.
(a) Purposes of Term Loan. Notwithstanding the provisions of
Section 6.15 of the Incorporated Representations, the proceeds of the Term Loan
shall be used by the Borrower solely (i) to repay Indebtedness outstanding under
the Revolving Credit Agreement and (ii) to finance working capital, capital
expenditures and other general corporate purposes, including, without
limitation, acquisitions permitted hereunder.
6.3 Additional Covenants.
(a) Purposes of Term Loan. Notwithstanding the provisions of
Section 7.13 of the Incorporated Covenants, the proceeds of the Term Loan shall
be used solely for the purposes provided in Section 6.2(a) hereof.
(b) Additional Credit Parties. The Borrower will provide to the
Administrative Agent, for the benefit of the Lenders, a Joinder Agreement and
the other items required by Section 7.11 of the Incorporated Covenants in the
same form and from the same Domestic Subsidiaries as required therein, except
that such other items shall reflect that they are delivered to, and run in favor
of, the Administrative Agent and secure the obligations of the Credit Parties
under this Credit Agreement and the other Credit Documents.
25
30
SECTION 7
EVENTS OF DEFAULT
7.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of
any of the Loans, or
(ii) default, and such default shall continue for three
(3) or more Business Days, in the payment when due of any interest on
the Loans, or of any Fees or other amounts owing hereunder, under any
of the other Credit Documents or in connection herewith or therewith;
or
(b) Representations. Any representation, warranty or statement
made or deemed to be made herein, in any of the other Credit Documents, or in
any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove untrue in any material respect on the date as of
which it was made or deemed to have been made (other than those which are untrue
solely as a result of changes permitted by this Agreement); or
(c) Covenants.
(i) Default in the due performance or observance of any
term, covenant or agreement contained in Section 7.3(a), 7.9, 7.11,
7.13 or 8.1 through 8.12, inclusive, in each case of the Incorporated
Covenants; or
(ii) Default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 7.1) contained in this
Credit Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a Responsible Officer
becoming aware of such default or notice thereof by the Administrative
Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any material term, covenant or agreement in
any of the other Credit Documents (subject to applicable grace or cure periods,
if any), or (ii) except as to any Credit Party which is dissolved, released or
merged or consolidated out of existence as the result of or in connection with a
dissolution, merger or disposition permitted by Section 8.3 or Section 8.4 , in
each case of the Incorporated Covenants, any Credit Document shall fail to be in
full force and effect or to give the Administrative Agent and/or the Lenders any
material part of the Liens, rights, powers and privileges purported to be
created thereby; or
26
31
(e) Guaranties. Except as to the Credit Party which is dissolved,
released or merged or consolidated out of existence as the result of or in
connection with a dissolution, merger or disposition permitted by Section 8.3 or
Section 8.4 of the Incorporated Covenants, the guaranty given by any Guarantor
hereunder or any material provision thereof shall cease to be in full force and
effect, or any Guarantor hereunder or any Person acting by or on behalf of such
Guarantor shall deny or disaffirm such Guarantor's obligations under such
guaranty, or any Guarantor shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant
to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
to any Material Credit Party; or
(g) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit Agreement)
in excess of US$3,000,000 in the aggregate for the Consolidated Group taken as a
whole, (A) (1) any Material Credit Party shall default in any payment (beyond
the applicable grace period with respect thereto, if any) with respect to any
such Indebtedness, or (2) the occurrence and continuance of a default in the
observance or performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event or condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is required),
any such Indebtedness to become due prior to its stated maturity; or (B) any
such Indebtedness shall be declared due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof; or
(h) Judgments. Any Material Credit Party shall fail within 30 days
of the date due and payable to pay, bond or otherwise discharge any judgment,
settlement or order for the payment of money which judgment, settlement or
order, when aggregated with all other such judgments, settlements or orders due
and unpaid at such time, exceeds US$3,000,000, and which is not stayed on appeal
(or for which no motion for stay is pending) or is not otherwise being executed;
or
(i) ERISA. Any of the following events or conditions, if such
event or condition could reasonably be expected to have a Material Adverse
Effect: (1) any "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Internal Revenue Code, whether or
not waived, shall exist with respect to any Plan, or any Lien shall arise on the
assets of a member of the Consolidated Group or any ERISA Affiliate in favor of
the PBGC or a Plan; (2) an ERISA Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the Administrative Agent,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA; (3) an ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (i) the termination of such Plan for
purposes of Title IV of ERISA, or (ii) a member of the Consolidated Group or any
ERISA Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section
27
32
4241 of ERISA), or insolvency of (within the meaning of Section 4245 of ERISA)
such Plan; or (4) any prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Internal Revenue Code) or breach of fiduciary
responsibility shall occur which may subject a member of the Consolidated Group
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Internal Revenue Code, or under any
agreement or other instrument pursuant to which a member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability; or
(j) Ownership. There shall occur a Change of Control; or
(k) Revolving Credit Agreement. There shall occur an Event of
Default under the Revolving Credit Agreement.
7.2 Acceleration; Remedies.
Upon the occurrence and during the continuation of an Event of Default,
the Administrative Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Credit Parties take any of the following
actions without prejudice to the rights of either Agent or any Lender to enforce
its claims against the Credit Parties, except as expressly provided for herein:
(i) Acceleration. Declare the unpaid principal of and any
accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by the Credit
Parties to either Agent and/or any of the Lenders under the Credit
Documents to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each of the Credit Parties.
(ii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
7.1(f) shall occur, then all Loans, all accrued interest in respect thereof, all
accrued and unpaid Fees and other indebtedness or obligations owing to either
Agent and/or any of the Lenders hereunder automatically shall immediately become
due and payable without presentment, demand, protest or the giving of any notice
or other action by the Agents or the Lenders, all of which are hereby waived by
the Credit Parties.
28
33
SECTION 8
AGENCY PROVISIONS
8.1 Appointment.
Each Lender hereby designates and appoints Bank of America as
administrative agent and as collateral agent of such Lender to act as specified
herein and the other Credit Documents, and each such Lender hereby authorizes
the Agents to take such action on its behalf under the provisions of this Credit
Agreement and the other Credit Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agents by the terms hereof and of
the other Credit Documents, together with such other powers as are reasonably
incidental thereto. Each Lender further directs and authorizes the Agents to
execute releases (or similar agreements) to give effect to the provisions of
this Credit Agreement and the other Credit Documents, including specifically,
without limitation, in connection with a Divestiture consented to or permitted
pursuant the provisions of Section 8.3 of the Incorporated Covenants or a sale,
lease, transfer or other disposition of Property not prohibited by this Credit
Agreement. Notwithstanding any provision to the contrary elsewhere herein and in
the other Credit Documents, the Agents shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against either Agent. The provisions of this Section are solely for the benefit
of the Agents and the Lenders, and none of the Credit Parties shall have any
rights as a third party beneficiary of the provisions hereof (other than as set
forth in the second sentence hereof). In performing their functions and duties
under this Credit Agreement and the other Credit Documents, the Agents shall act
solely as Agent of the Lenders and do not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or for any Credit
Party or any of their respective Affiliates.
8.2 Delegation of Duties.
The Agents may execute any of their duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The
Agents shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions.
No Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained herein
or in any of the other Credit Documents or in any certificate, report, document,
financial statement or other written or oral statement referred to or provided
for in, or received by such Agent under or in connection herewith or in
connection with the other Credit
29
34
Documents, or enforceability or sufficiency therefor of any of the other Credit
Documents, or for any failure of any Credit Party to perform its obligations
hereunder or thereunder. No Agent shall be responsible to any Lender for the
effectiveness, genuineness, validity, enforceability, collectability or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by the Borrower or any Credit Party in any written or oral
statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by such Agent to the Lenders or by or on behalf of the Credit
Parties to such Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Term Loan or of the existence or possible existence of any
Default or Event of Default or to inspect the properties, books or records of
the Credit Parties or any of their respective Affiliates.
8.4 Reliance on Communications.
Each Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by such Agent with reasonable care). Each Agent may deem
and treat the Lenders as the owners of their respective interests hereunder for
all purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent in accordance with
Section 9.3(b). Each Agent shall be fully justified in failing or refusing to
take any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder or under any of the other Credit Documents in accordance
with a request of the Required Lenders (or to the extent specifically provided
in Section 9.6, all the Lenders) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders (including
their successors and assigns).
8.5 Notice of Default.
No Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless such Agent has received
notice from a Lender or a Credit Party referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that such Agent receives such a notice, such
Agent shall give prompt notice thereof to the other Agent and the Lenders. The
Agents shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders.
30
35
8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Agents or any
affiliate thereof hereinafter taken, including any review of the affairs of any
Credit Party or any of their respective Affiliates, shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each
Lender represents to the Agents that it has, independently and without reliance
upon either Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower, the other
Credit Parties or their respective Affiliates and made its own decision to make
its Loans hereunder and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon either Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Credit Agreement, and to
make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower, the other Credit Parties and
their respective Affiliates. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Agents shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
assets, property, financial or other conditions, prospects or creditworthiness
of the Borrower, the other Credit Parties or any of their respective Affiliates
which may come into the possession of either Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
8.7 Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably in accordance with the respective principal
amounts of outstanding Loans and Participation Interests of the Lenders), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the final payment of all of the obligations of the Borrower hereunder
and under the other Credit Documents) be imposed on, incurred by or asserted
against such Agent in its capacity as such in any way relating to or arising out
of this Credit Agreement or the other Credit Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of such
Agent. If any indemnity furnished to an Agent for any purpose shall, in the
opinion of such Agent, be insufficient or become impaired, such Agent may call
for additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this
Section shall survive the repayment
31
36
of the Loans and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
8.8 Administrative Agent in its Individual Capacity.
The Agents and their affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its Subsidiaries
or their respective Affiliates as though the Agents were not the Agents
hereunder. With respect to the Loans made by and all obligations of the Borrower
hereunder and under the other Credit Documents, the Agents shall have the same
rights and powers under this Credit Agreement as any Lender and may exercise the
same as though it were not an Agent, and the terms "Lender" and "Lenders" shall
include the Agents in its individual capacity.
8.9 Successor Administrative Agent.
Any Agent may, at any time, resign upon 20 days' written notice to the
Lenders, and may be removed, upon show of cause, by the Required Lenders upon 30
days' written notice to such Agent. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the notice of resignation
or notice of removal, as appropriate, then the retiring Agent shall select a
successor Agent provided such successor is a Lender hereunder or a commercial
bank organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least US$400,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor, 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 as Agent, as
appropriate, under this Credit Agreement and the other Credit Documents and the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Credit Agreement.
8.10 Intercreditor Agreement.
Inasmuch as the obligations under the Revolving Credit Agreement are
secured by the same collateral as that securing the obligations under this
Credit Agreement, an intercreditor agreement is required in order that the
respective obligations share in such collateral on a pari passu basis. By
execution hereof, each Lender hereby acknowledges and agrees to be bound by the
terms of the Intercreditor Agreement and further authorizes and directs the
Collateral Agent to enter into the Intercreditor Agreement on its behalf.
32
37
SECTION 9
MISCELLANEOUS
9.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to the
number set out below, (iii) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Borrower, Guarantors and the Agents, set forth
below, and, in the case of the Lenders, set forth on Schedule 9.1, or at such
other address as such party may specify by written notice to the other parties
hereto:
if to the Borrower or the Guarantors:
RailWorks Corporation
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to either Agent:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
33
38
with a copy to:
Bank of America, N.A.
00 Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx
MD4-302-16-01
Baltimore, MD 21202-1435
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
9.2 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Person to such Lender hereunder, under the Term Notes, the
other Credit Documents or otherwise, irrespective of whether such Lender shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured, and any such set-off
shall be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender
subsequent thereto. Any Person purchasing a participation in the Loans and
Commitments hereunder pursuant to Section 3.14 or Section 9.3(d) may exercise
all rights of set-off with respect to its participation interest as fully as if
such Person were a Lender hereunder.
9.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that none of the Credit Parties may
assign or transfer any of its interests without prior written consent of the
Lenders; provided further that the rights of each Lender to transfer, assign or
grant participations in its rights and/or obligations hereunder shall be limited
as set forth in this Section 9.3, provided however that nothing herein shall
prevent or prohibit any Lender from (i) pledging its Loans hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, or (ii) granting assignments or selling participations in
such Lender's Loans and/or Commitments hereunder to its parent company and/or to
any Affiliate or Subsidiary of such Lender.
(b) Assignments. Each Lender may assign all or a portion of its
rights and obligations hereunder (including, without limitation, all or a
portion of its Commitments or its Loans), pursuant to an assignment agreement
substantially in the form of Schedule 9.3(b), to (i) a Lender, (ii) an
34
39
affiliate of a Lender or (iii) any bank, financial institution, commercial
lender or institutional investor reasonably acceptable to the Administrative
Agent and, so long as no Default or Event of Default has occurred and is
continuing, the Borrower (the consent of the Borrower shall not be unreasonably
withheld or delayed); provided that (i) any such assignment (other than any
assignment to an existing Lender) shall be in a minimum aggregate amount of
US$5,000,000 (or, if less, the remaining amount of the Commitment being assigned
by such Lender) of the Commitments and in integral multiples of US$250,000 above
such amount and (ii) each such assignment shall be of a constant, not varying,
percentage of all such Lender's rights and obligations under this Credit
Agreement. Any assignment hereunder shall be effective upon delivery to the
Administrative Agent of written notice of the assignment together with a
transfer fee of US$3,500 payable to the Administrative Agent for its own account
from and after the later of (i) the effective date specified in the applicable
assignment agreement and (ii) the date of recording of such assignment in the
Register pursuant to the terms of subsection (c) below. The assigning Lender
will give prompt notice to the Administrative Agent and the Borrower of any such
assignment. Upon the effectiveness of any such assignment (and after notice to,
and (to the extent required pursuant to the terms hereof), with the consent of,
the Borrower as provided herein), the assignee shall become a "Lender" for all
purposes of this Credit Agreement and the other Credit Documents and, to the
extent of such assignment, the assigning Lender shall be relieved of its
obligations hereunder to the extent of the Loans and Commitment components being
assigned. Along such lines the Borrower agrees that upon notice of any such
assignment and surrender of the appropriate Term Note or Term Notes, it will
promptly provide to the assigning Lender and to the assignee separate promissory
notes in the amount of their respective interests substantially in the form of
the original Term Note (but with notation thereon that it is given in
substitution for and replacement of the original Term Note or any replacement
notes thereof). By executing and delivering an assignment agreement in
accordance with this Section 9.3(b), the assigning Lender thereunder and the
assignee thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim; (ii) except as set forth in clause (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, any of the other Credit Documents
or any other instrument or document furnished pursuant hereto or thereto or the
financial condition of any Credit Party or any of their respective Affiliates or
the performance or observance by any Credit Party of any of its obligations
under this Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
assignment agreement; (iv) such assignee confirms that it has received a copy of
this Credit Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such assignment agreement; (v) such assignee will
independently and without reliance upon the Agents, such assigning Lender or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Credit Agreement and the other Credit Documents;
(vi) such assignee appoints and authorizes the Agents
35
40
to take such action on its behalf and to exercise such powers under this Credit
Agreement or any other Credit Document as are delegated to the Agents by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Credit Agreement and
the other Credit Documents are required to be performed by it as a Lender.
(c) Maintenance of Register. The Administrative Agent shall
maintain at one of its offices in Charlotte, North Carolina a copy of each
Lender assignment agreement delivered to it in accordance with the terms of
subsection (b) above and a register for the recordation of the identity of the
principal amount, type and Interest Period of each Loan outstanding hereunder,
the names, addresses and the Commitments of the Lenders pursuant to the terms
hereof from time to time (the "Register"). The Administrative Agent will make
reasonable efforts to maintain the accuracy of the Register and to promptly
update the Register from time to time, as necessary. The entries in the Register
shall be conclusive in the absence of manifest error and the Borrower, the
Agents and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Credit Agreement. The Register shall be available for inspection by the
Borrower and each Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Participations. Each Lender may sell, transfer, grant or
assign participations in all or a portion of such Lender's rights, obligations
or rights and obligations hereunder (including all or a portion of its
Commitments or its Loans); provided that (i) such selling Lender shall remain a
"Lender" for all purposes under this Credit Agreement (such selling Lender's
obligations under the Credit Documents remaining unchanged) and the participant
shall not constitute a Lender hereunder, (ii) no such participant shall have, or
be granted, rights to approve any amendment or waiver relating to this Credit
Agreement or the other Credit Documents except to the extent any such amendment
or waiver would (A) reduce the principal of or rate of interest on or Fees in
respect of any Loans in which the participant is participating, (B) postpone the
date fixed for any payment of principal, interest or Fees in which the
participant is participating, (C) except as the result of or in connection with
a dissolution, merger or disposition of a Subsidiary permitted under Section 8.3
of the Incorporated Covenants, release the Borrower or substantially all of the
Guarantors from its or their obligations under the Credit Documents, or (D)
except as the result of or in connection with a Divestiture permitted under
Section 8.3(b) of the Incorporated Covenants, release all or substantially all
of the collateral, and (iii) sub-participations by the participant (except to an
affiliate, parent company or affiliate of a parent company of the participant)
shall be prohibited. In the case of any such participation, the participant
shall not have any rights under this Credit Agreement or the other Credit
Documents (the participant's rights against the selling Lender in respect of
such participation to be those set forth in the participation agreement with
such Lender creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such participation,
provided, however, that such participant shall be entitled to receive additional
amounts under Sections 3.6, 3.9, 3.10, 3.11 and 9.2 on the same basis as if it
were a Lender.
36
41
9.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of either Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between either Agent or any Lender and any of
the Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which either Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle the Borrower or any other
Credit Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents or the Lenders
to any other or further action in any circumstances without notice or demand.
9.5 Payment of Expenses, etc.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agents in connection with the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the other
Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of Xxxxx & Xxx
Xxxxx, PLLC, special counsel to the Agents) and any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement and (B) of the Agents and the Lenders in connection with enforcement
of the Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Administrative Agent and
each of the Lenders); (ii) permit the Administrative Agent to perform inventory
and accounts receivable field audits at the Borrower's expense, provided that
unless an Event of Default shall be in existence the Borrower's obligation to
reimburse the Administrative Agent for such field audits shall be limited to one
such field audit each fiscal year; (iii) pay and hold each of the Lenders
harmless from and against any and all present and future stamp and other similar
taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such
Lender) to pay such taxes; and (iv) indemnify each Lender, its officers,
directors, employees, representatives and the Agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of (A) any investigation, litigation or other proceeding
(whether or not any Lender is a party thereto) related to the entering into
and/or performance of any Credit Document or the use of proceeds of any Loans
(including other Extensions of Credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding or (B)
the presence or Release of any Materials of Environmental Concern at, under or
from any Property owned, operated or leased by the Borrower or any of its
Subsidiaries, or the failure by the Borrower or any of its Subsidiaries to
comply with any Environmental Law (but
37
42
excluding, in the case of either of clause (A) or (B) above, any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason of
gross negligence or willful misconduct on the part of the Person to be
indemnified).
9.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Lenders and the
Borrower, provided, however, that:
(a) without the consent of each Lender affected thereby, neither
this Credit Agreement nor any of the other Credit Documents may be
amended to
(i) extend the final maturity of any Loan (other than
the waiver of any mandatory prepayment required by Section
3.3(b)),
(ii) reduce the rate or extend the time of payment of
interest thereon or Fees hereunder (other than as a result of
waiving the applicability of any increase in interest rates
or Fees after the occurrence of an Event of Default or on
account of a failure to deliver financial statements on a
timely basis),
(iii) reduce or waive the principal amount of any Loan,
(iv) increase the Commitment of a Lender over the
amount thereof in effect (it being understood and agreed that
a waiver of any mandatory prepayment required by Section
3.3(b) or a waiver of any Default or Event of Default shall
not constitute an increase in the Commitment of any Lender),
(v) except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted
under Section 8.3 of the Incorporated Covenants, release the
Borrower or substantially all of the Guarantors from its or
their obligations under the Credit Documents,
(vi) except as the result of or in connection with a
Divestiture permitted under Section 8.3(b) of the
Incorporated Covenants, release all or substantially all of
the collateral,
(vii) amend, modify or waive any provision of this
Section 9.6 or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.13,
3.14, 3.15, 7.1(a), 9.2, 9.3, 9.5 or 9.9,
(viii) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders, or
38
43
(ix) consent to the assignment or transfer by the
Borrower (or another Credit Party) of any of its rights and
obligations under (or in respect of) the Credit Documents
except as permitted thereby;
(b) without the consent of the Administrative Agent, no
provision of Section 8 may be amended;
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
9.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
9.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
9.9 Survival.
All indemnities set forth herein, including, without limitation, in
Section 3.9, 3.11, 8.7 or 9.5 shall survive the execution and delivery of this
Credit Agreement, the making of the Loans, the repayment of the Loans and other
obligations under the Credit Documents and the termination of the Commitments
hereunder, and all representations and warranties made by the Credit Parties
herein shall survive delivery of the Term Notes and the making of the Loans
hereunder.
9.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(b) Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of the State
of North Carolina in Mecklenburg County, or of the United States for the Western
District of North Carolina, and, by execution and delivery of this Credit
Agreement, each of the Credit Parties hereby irrevocably accepts for itself
39
44
and in respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each of the Credit Parties further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address set out for notices
pursuant to Section 9.1, such service to become effective three (3) days after
such mailing. Nothing herein shall affect the right of the Agents to serve
process in any other manner permitted by law or to commence legal proceedings or
to otherwise proceed against any Credit Party in any other jurisdiction.
(c) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
(d) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE
AGENT, THE COLLATERAL AGENT, THE LENDERS, THE BORROWER AND THE OTHER CREDIT
PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
9.11 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
9.12 Entirety.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
9.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on
or after the Closing Date when it shall have been executed by the Borrower, the
Guarantors and the Administrative Agent, and the Administrative Agent shall have
received copies hereof (telefaxed or otherwise) which, when taken together, bear
the signatures of each Lender, and thereafter this Credit Agreement shall be
binding upon and inure to the benefit of the Borrower, the Guarantors, the
Agents and each Lender and their respective successors and assigns.
40
45
(b) The term of this Credit Agreement shall commence on the
effective date pursuant to subsection (a) above and shall continue until no
Loans or any other amounts payable hereunder or under any of the other Credit
Documents shall remain outstanding and until all of the Commitments hereunder
shall have expired or been terminated.
9.14 Confidentiality.
The Administrative Agent and the Lenders agree to keep confidential
(and to cause their respective affiliates, officers, directors, employees,
agents and representatives to keep confidential) all information, materials and
documents furnished to the Administrative Agent or any such Lender by or on
behalf of any Credit Party (whether before or after the Closing Date) which
relates to the Borrower or any of its Subsidiaries (the "Information").
Notwithstanding the foregoing, the Administrative Agent and each Lender shall be
permitted to disclose Information (i) to its affiliates, officers, directors,
employees, agents and representatives in connection with its participation in
any of the transactions evidenced by this Credit Agreement or any other Credit
Documents or the administration of this Credit Agreement or any other Credit
Documents, subject to the provisions of this Section 9.14; (ii) to the extent
required by applicable laws and regulations or by any subpoena or similar legal
process, or requested by any Governmental Authority; (iii) to the extent such
Information (A) becomes publicly available other than as a result of a breach of
this Credit Agreement or any agreement entered into pursuant to clause (iv)
below, (B) becomes available to the Administrative Agent or such Lender on a
non-confidential basis from a source other than a Credit Party or (C) was
available to the Administrative Agent or such Lender on a non-confidential basis
prior to its disclosure to the Administrative Agent or such Lender by a Credit
Party; (iv) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) first specifically agrees in a writing furnished to and for the
benefit of the Credit Parties to be bound by the terms of this Section 9.14; or
(v) to the extent that the Borrower shall have consented in writing to such
disclosure. Nothing set forth in this Section 9.14 shall obligate the
Administrative Agent or any Lender to return any materials furnished by the
Credit Parties.
9.15 Source of Funds.
Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation as to the
source of funds to be used by such Lender in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to
any separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such Lender,
such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this subsection
41
46
(b), all employee benefit plans maintained by the same employer or
employee organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes
assets of an insurance company's general account, such insurance
company has complied with all of the requirements of the regulations
issued under Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
As used in this Section 9.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
9.16 Conflict.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
9.17 Senior Subordinated Note Indenture.
The Borrower hereby (a) acknowledges and agrees that the Indebtedness
evidenced by this Agreement and the other Credit Documents constitutes Senior
Debt as defined in the Senior Subordinated Note Indenture, (b) specifically
designates the Indebtedness evidenced by this Agreement and the other Credit
Documents (specifically including all Obligations) as "Designated Senior Debt"
for all purposes, including without limitation for purposes of the Senior
Subordinated Note Indenture and (c) agrees that it will not designate any other
Indebtedness incurred by it as "Designated Senior Debt" without the prior
written consent of the Required Lenders.
[Signature Page to Follow]
42
47
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: RAILWORKS CORPORATION,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS: ALPHA-KEYSTONE ENGINEERING, INC.,
a Pennsylvania corporation
ANNEX RAILROAD BUILDERS, INC.,
an Indiana corporation
ARMCORE ACQUISITION CORP.,
a Delaware corporation
ARMCORE RAILROAD CONTRACTORS, INC.,
an Illinois corporation
BIRMINGHAM WOOD, INC.,
an Alabama corporation
XXXXXXXX HOLDINGS INC.,
a Delaware corporation
COMTRAK CONSTRUCTION, INC.,
a Georgia corporation
XXXXXX BROTHERS, INC.,
a Washington corporation
CPI CONCRETE PRODUCTS INCORPORATED,
a Tennessee corporation
XXXX XXXXXXXX CONSTRUCTION COMPANY, INC.,
a Texas corporation
FCM RAIL, LTD., a Michigan corporation
GANTREX CORPORATION,
a Pennsylvania corporation
H.P. XXXXXXXX INC.,
a Pennsylvania corporation
IMPULSE ENTERPRISES OF NEW YORK, INC.,
a New York corporation
XXXXXXX RAILROAD BUILDERS, INC.,
a Pennsylvania corporation
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
[Signature Pages Continue]
48
M-TRACK ENTERPRISES, INC., a New York
corporation XXXXXX TREATED WOOD, INC.,
an Alabama corporation MERIT RAILROAD
CONTRACTORS, INC., a Missouri corporation
MIDWEST CONSTRUCTION SERVICES, INC.,
an Indiana corporation MIDWEST RAILROAD
CONSTRUCTION & MAINTENANCE CORPORATION OF WYOMING,
a Wyoming corporation
MIDWEST RW, INC.,
a Delaware corporation
MINNESOTA RAILROAD SERVICE, INC.,
a Tennessee corporation
NEOSHO ASIA, INC.,
a Kansas corporation
NEOSHO CENTRAL AMERICA, INC.,
a Kansas corporation
NEOSHO CONSTRUCTION COMPANY, INCORPORATED,
a Kansas corporation
NEOSHO CONTRACTORS, INC.,
a Wyoming corporation
NEOSHO INCORPORATED,
a Kansas corporation
NEOSHO INTERNATIONAL, INC.,
a Kansas corporation
NEW ENGLAND RAILROAD CONSTRUCTION CO., INC.,
a Connecticut corporation
NORTHERN RAIL SERVICE AND SUPPLY COMPANY, INC.,
a Michigan corporation
XXXXXXX RAILWAY SHOPS, INC.,
a Kansas corporation
R. & M. B. RAIL CO., INC.,
an Indiana corporation
RAILCORP, INC.,
an Ohio corporation
RAILROAD RESOURCES, INC.,
a Missouri corporation
RAILROAD SERVICE, INC.,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
[Signature Pages Continue]
49
RAILROAD SPECIALTIES, INC.,
an Indiana corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
U.S. RAILWAY SUPPLY, INC.,
an Indiana corporation
U.S. TRACKWORKS, INC.,
a Michigan corporation
V&R ELECTRICAL CONTRACTORS, INC.,
a New York corporation
WM. X. XXXXX CONSTRUCTION CO., INC.,
a Texas corporation
WM. X. XXXXX RERAILING SERVICES, INC.,
a Texas corporation
WOOD WASTE ENERGY, INC.,
a Virginia corporation
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
X.X. XXXXXXXX & COMPANY, INC.,
a New York corporation
By: /s/ C. Xxxxxxx Xxxxx
---------------------------------------------
Name: C. Xxxxxxx Xxxxx
Title: Chief Executive Officer and President
F&V METRO RW, INC.,
a Delaware corporation
RAILWORKS CANADA, INC.
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Secretary
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
[Signature Pages Continue]
50
GANTREX RW, INC.,
a Delaware corporation
GANTREX SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Secretary of each of the foregoing
Domestic Guarantors
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of each
of the foregoing Domestic Guarantors
[Signature Pages Continue]
51
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx Xxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxx Xxxxxxx
Title: Senior Vice President
FLEET BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK ONE, MICHIGAN
By: /s/ Xxx X. Xxx
---------------------------------
Name: Xxx X. Xxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
M&T BANK
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
52
Schedule 2.1(a)
Schedule of Lenders and Commitments
Lender Term Loan Term Loan
------ Committed Amount Commitment Percentage
---------------- ---------------------
Bank of America, N.A. US$ 6,300,000 21.00000000%
First Union National Bank US$ 6,300,000 21.00000000%
Fleet Bank, N.A. US$ 5,000,000 16.00000000%
Bank One, Michigan US$ 5,000,000 16.00000000%
M&T Bank US$ 5,000,000 16.00000000%
KeyBank National Association US$ 2,400,000 8.00000000%
------------- -----------
Total US$30,000,000 100.00%
53
Schedule 2.1(b)(i)
FORM OF NOTICE OF BORROWING
Bank of America, N.A.
as Administrative Agent for the Lenders
000 X. Xxxxx Xxxxxx
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
RE: Term Loan Credit Agreement dated as of November 5, 1999 (as
amended and modified from time to time, the "Credit
Agreement") among RailWorks Corporation, a Delaware
corporation (the "Borrower"), the Subsidiaries of the Borrower
identified therein, the Lenders identified therein, First
Union National Bank, as Documentation Agent, and Bank of
America, N.A., as Administrative Agent. Terms used but not
otherwise defined herein shall have the meanings provided in
the Credit Agreement.
Ladies and Gentlemen:
The Borrower hereby gives notice of a request for the Term Loan pursuant to
Section 2.1(b) of the Credit Agreement as follows:
(A) Date of Borrowing
(which is the Closing Date) -------------------------------
(B) Principal Amount of
Borrowing -------------------------------
(C) Interest rate basis
-------------------------------
(D) Interest Period and the
last day thereof -------------------------------
In accordance with the requirements of Section 5.2 of the Credit Agreement, the
undersigned Borrower hereby certifies that:
(a) The representations and warranties contained in the Credit
Agreement and the other Credit Documents are true and correct in all material
respects as of the date of this request, and will be true and correct after
giving effect to the requested Extension of Credit (except for those which
expressly related to an earlier date).
(b) No Default or Event of Default exists, or will exist after giving
effect to the requested Extension of Credit.
(c) All conditions set forth in Section 2 as to the making of the Term
Loan have been satisfied.
54
Very truly yours,
RAILWORKS CORPORATION
By:
------------------------------------
Name:
Title:
3
55
Schedule 2.1(e)
Form of Term Note
November 5, 1999
FOR VALUE RECEIVED, RAILWORKS CORPORATION, a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of __________________, and its
successors and permitted assigns (the "Lender"), in such amounts and on such
dates as set forth in the Credit Agreement to the office of the Administrative
Agent in immediately available funds as provided in the Credit Agreement, such
Lender's Term Loan Committed Amount, together with interest thereon at the rates
and as provided in the Credit Agreement.
This Term Note is one of the Term Notes referred to in the Term Loan
Credit Agreement dated as of the date hereof (as amended and modified from time
to time, the "Credit Agreement") among the Borrower, the Subsidiaries of the
Borrower identified therein, the Lenders identified therein, First Union
National Bank, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent. Terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Term Note and all payments and prepayments thereon; provided
that any failure to endorse such information shall not affect the obligation of
the undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts evidenced by
this Term Note may, or shall, become immediately due and payable as provided in
the Credit Agreement without presentment, demand, protest or notice of any kind,
all of which are waived by the undersigned Borrower. In the event payment of
amounts evidenced by this Term Note is not made at any stated or accelerated
maturity, the undersigned Borrower agrees to pay, in addition to principal and
interest, all costs of collection, including reasonable attorneys' fees.
This Term Note and the Loans and amounts evidenced hereby may be
transferred only as provided in the Credit Agreement.
This Term Note shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
In WITNESS WHEREOF, the undersigned Borrower has caused this Term Note
to be duly executed as of the date first above written.
RAILWORKS CORPORATION,
a Delaware corporation
By:
---------------------------
Name:
Title:
4
56
Schedule 3.2
Form of Notice of Extension/Conversion
Bank of America, N.A.,
as Administrative Agent for the Lenders
000 X. Xxxxx Xxxxxx
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Re: Term Loan Credit Agreement dated as of November 5, 1999 (as
amended and modified from time to time, the "Credit
Agreement") among RailWorks Corporation, a Delaware
corporation (the "Borrower"), the Subsidiaries of the Borrower
identified therein, the Lenders identified therein, First
Union National Bank, as Documentation Agent, and Bank of
America, N.A., as Administrative Agent. Terms used but not
otherwise defined herein shall have the meanings provided in
the Credit Agreement.
Ladies and Gentlemen:
The Borrower hereby gives notice pursuant to Section 3.2 of the Credit
Agreement that it requests an extension or conversion of a Loan outstanding
under the Credit Agreement, and in connection therewith sets forth below the
terms on which such extension or conversion is requested to be made:
(A) Date of Extension or Conversion
(which is the last day of the
applicable Interest Period) ----------------------------------
(B) Principal Amount of
Extension or Conversion ----------------------------------
(C) Interest rate basis ----------------------------------
(D) Interest Period and the
last day thereof ----------------------------------
In accordance with the requirements of Section 3.2 of the Credit
Agreement, the Borrower hereby certifies that, in the case of an extension of a
Eurodollar Loan or the conversion of a Base Rate Loan into a Eurodollar Loan:
(a) The representations and warranties contained in the
Credit Agreement and the other Credit Documents are true and correct in
all material respects as of the date of
5
57
this request, and will be true and correct after giving effect to the
requested Extension of Credit (except for those which expressly relate
to an earlier date).
(b) No Default or Event of Default exists, or will exist
after giving effect to the requested Extension of Credit.
(c) All conditions set forth in Section 3.2 as to the
extension of a Eurodollar Loan or the conversion of a Base Rate Loan
into a Eurodollar Loan:
Very truly yours,
RAILWORKS CORPORATION
By:
------------------------------
Name:
Title:
6
58
Schedule 5.1(d)(iii)
Secretary's Certificate
Pursuant to Section 5.1(d)(iii) of the Credit Agreement (the "Credit
Agreement"; terms used but not otherwise defined herein shall have the meanings
provided in the Credit Agreement), dated as of November 5, 1999, among RailWorks
Corporation, a Delaware corporation (the "Borrower"), the Subsidiaries of the
Borrower identified therein, the Lenders identified therein, First Union
National Bank, as Documentation Agent, and Bank of America, N.A., as
Administrative Agent, the undersigned, ______________, Secretary of
_______________ (the "Corporation"), hereby certifies as follows:
1. Attached hereto as Annex I is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Corporation on
_______________________, 199_. The attached resolutions have not been rescinded
or modified and remain in full force and effect. The attached resolutions are
the only corporate proceedings of the Corporation now in force relating to or
affecting the matters referenced to therein.
2. The Bylaws of the Corporation and the Articles of
Incorporation of the Corporation attached to the Secretary's Certificate of the
Corporation (the "Prior Secretary's Certificate") previously delivered to Bank
of America, N.A., as administrative agent under the Revolving Credit Agreement,
are true and correct copies of the Bylaws of the Corporation and the Articles of
Incorporation of the Corporation as in effect on the date hereof.
3. Each officer of the Corporation identified on the Prior
Secretary's Certificate is now a duly elected and qualified officer of the
Corporation, holding the office indicated, and such officer is duly authorized
to execute and deliver on behalf of the Corporation, the Credit Agreement, the
Term Notes and the other Credit Documents and to act as a Responsible Officer on
behalf of the Corporation under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her name and
affixed the corporate seal of the Corporation.
-----------------------------
Secretary
Date: November 5, 1999
(CORPORATE SEAL)
I, __________Vice President of the Corporation, hereby certify that
__________, whose genuine signature appears above, is, and has been at all times
since __________, a duly elected, qualified and acting Secretary of the
Corporation.
-------------------------------
Vice President
November 5, 1999
7
59
Schedule 6.3(b)
Form of Joinder Agreement
THIS JOINDER AGREEMENT (the "Agreement"), dated as of
___________________, ____, is by and among _______________________, a
__________________ (the "Applicant Guarantor"), and BANK OF AMERICA, N.A., in
its capacity as Administrative Agent under that Term Loan Credit Agreement dated
as of November 5, 1999 (as amended and modified from time to time, the "Credit
Agreement") by and among RailWorks Corporation, a Delaware corporation (the
"Borrower"), the Subsidiaries of the Borrower identified therein, the lenders
identified therein, First Union National Bank, as Documentation Agent, and Bank
of America, N.A., as Administrative Agent. All of the defined terms in the
Credit Agreement are incorporated herein by reference.
The Applicant Guarantor has indicated its desire to become a Guarantor
or is required by the terms of Section 6.3(b) of the Credit Agreement to become
a Guarantor.
Accordingly, the Applicant Guarantor hereby agrees with the Agents, for
the benefit of the Lenders, as follows:
1. The Applicant Guarantor hereby acknowledges, agrees and
confirms that, by its execution of this Agreement, the Applicant Guarantor will
be deemed to be a party to the Credit Agreement and a "Guarantor" for all
purposes of the Credit Agreement and the other Credit Documents, and shall have
all of the obligations of a Guarantor thereunder as if it had executed the
Credit Agreement and the other Credit Documents. The Applicant Guarantor agrees
to be bound by all of the terms, provisions and conditions contained in the
Credit Documents, including without limitation (i) all of the affirmative and
negative covenants set forth in Section 6.3 of the Credit Agreement and
contained in Sections 7 and 8 of the Incorporated Covenants applicable to a
Guarantor and (ii) all of the undertakings and waivers applicable to a Guarantor
set forth in Section 4 of the Credit Agreement. Without limiting the generality
of the foregoing terms of this paragraph 1, the Applicant Guarantor hereby (A)
jointly and severally together with the other Guarantors, guarantees to each
Lender (including the Issuing Lender), each Affiliate of a Lender which enters
into a Hedging Agreement and the Administrative Agent, as provided in Section 4
of the Credit Agreement, the prompt payment and performance of the Guaranteed
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise)
strictly in accordance with the terms thereof, (B) agrees that if any of the
Guaranteed Obligations are not paid or performed in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Applicant Guarantor will, jointly and
severally together with the other Guarantors, promptly pay and perform the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal, (C) grants
to the Collateral Agent, for the benefit of the Lenders, a security interest in
its Collateral as referred in, and pursuant to the terms of, the Security
Agreement, and (D) pledges and grants a security interest to the Collateral
Agent, for the benefit of the Lenders, in the Collateral as referred in, and
pursuant to the terms of, the Pledge Agreement, including the Pledged Stock
identified in Schedule A attached hereto, if any.
2. The Applicant Guarantor acknowledges and confirms that it has
received a copy of the Credit Agreement and the other Credit Documents
(including the Schedules and Exhibits thereto). The
8
60
information on the Schedules to the Security Agreement and the Pledge Agreement
is amended to provide the information shown on the attached Schedule A with
respect to the Applicant Guarantor.
3. The Applicant Guarantor hereby waives acceptance by the Agents
and the Lenders of the guaranty by the Applicant Guarantor under Section 4 of
the Credit Agreement upon the execution of this Joinder Agreement by the
Applicant Guarantor.
4. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute one contract.
5. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties hereto has caused this Joinder
Agreement to be duly executed by its authorized officer as of the day and year
first above written.
APPLICANT GUARANTOR
By:
----------------------------
Name:
Title:
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
----------------------------
Name:
Title:
9
61
Schedule A
to
Joinder Agreement
62
Schedule 9.1
Schedule of Lenders' Addresses
1. Bank of America, N.A. Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Bank of America, N.A.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
2. First Union National Bank First Union National Bank 0000 Xxxxx
Xxxxxx Xxxx XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxx Xxxxxxx
Telephone: 000-000-0000 Telecopy:
3. Fleet Bank Fleet Bank
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
5. M&T Bank M&T Bank
000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
63
5. Key Bank Key Bank
Mailcode: OH-01-27-0606
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
6. Bank One, Michigan Bank One, Michigan
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
64
Schedule 9.3(b)
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE dated as of , 199_ is entered into
between THE LENDER IDENTIFIED ON THE SIGNATURE PAGES AS THE "ASSIGNOR" (the
"Assignor") and THE PARTY IDENTIFIED ON THE SIGNATURE PAGES AS "ASSIGNEE"
("Assignee").
Reference is made to that Term Loan Credit Agreement dated as of
November 5, 1999 (as amended and modified from time to time, the "Credit
Agreement") among RailWorks Corporation, a Delaware corporation (the
"Borrower"), the Subsidiaries of the Borrower identified therein, the Lenders
identified therein and Bank of America, N.A., as Administrative Agent. Terms
defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to
the Assignee, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Effective Date shown below, those rights
and interests of the Assignor under the Credit Agreement identified below (the
"Assigned Interests"), including the Loans and Commitments relating thereto,
together with unpaid interest and fees relating thereto accruing from the
Effective Date. The Assignor represents and warrants that it owns interests
assigned hereby free and clear of liens, encumbrances or other claims. The
Assignee represents that it is a permitted assignee under Section 9.3(b) of the
Credit Agreement. The Assignor and the Assignee hereby make and agree to be
bound by all the representations, warranties and agreements set forth in Section
9.3 of the Credit Agreement, a copy of which has been received by each such
party. From and after the Effective Date (i) the Assignee, if it is not already
a Lender under the Credit Agreement, shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement (other than the rights of
indemnification referenced in Section 9.9 of the Credit Agreement). Schedule
2.1(a) is deemed modified and amended to the extent necessary to give effect to
this Assignment.
2. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
3. Terms of Assignment
(a) Date of Assignment: , 199__
-------------------
(b) Legal Name of Assignor: SEE SIGNATURE PAGE
(c) Legal Name of Assignee: SEE SIGNATURE PAGE
(d) Effective Date of Assignment: , 199__
-------------------
65
See Schedule I attached for a description of the Loans and Commitments (and the
percentage interests therein and relating thereto) which are the subject of this
Assignment and Acceptance.
4. The fee payable to the Administrative Agent in connection with
this Assignment is enclosed.
IN WITNESS WHEREOF, the parties hereto have caused the execution of
this instrument by their duly authorized officers as of the date first above
written.
ASSIGNOR: ASSIGNEE:
By: By:
-------------------------------- -----------------------------
Name: Name:
Title: Title:
Address for Notices:
ACKNOWLEDGEMENT AND CONSENT
BANK OF AMERICA, N.A., RAILWORKS CORPORATION,
as Administrative Agent a Delaware corporation
By: By:
-------------------------------- -----------------------------
Name: Name:
Title: Title:
66
SCHEDULE I
TO ASSIGNMENT AND ACCEPTANCE
RAILWORKS CORPORATION
TERM LOANS PRIOR TO ASSIGNMENT
Term Loan Term Loan Term
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEE
-------------------- -------------------- --------------------
US$ US$
TERM LOANS SUBJECT TO THIS ASSIGNMENT
Term Loan Term Loan Term
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEE
-------------------- -------------------- --------------------
US$ US$
TERM LOANS AFTER ASSIGNMENT
Term Loan Term Loan Term
Committed Commitment Loans
Amount Percentage Outstanding
------ ---------- -----------
ASSIGNOR
ASSIGNEE
-------------------- -------------------- --------------------
US$ US$
