EXHIBIT 10.11
CREDIT AGREEMENT
Dated as of June 26, 1996
among
NATIONSBANK, N.A. (SOUTH)
and
SUNTRUST BANK, MIAMI, N.A.
("Lender")
and
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
and
THE PBSI CORPORATION
("Borrower")
and
SEMINOLE DEVELOPMENT CORPORATION
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
POST XXXXXXX, XXXXX & XXXXXXXX, INC.
HOH ASSOCIATES, INC.
POST, XXXXXXX INTERNATIONAL, INC.
PBS&J CONSTRUCTION SERVICES, INC.
MEASUREMENT SCIENCE, INC.
SEMINOLE INVESTMENTS, INC.
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.
POST, XXXXXXX, XXXXX & XXXXXXXX, INC. OF ARIZONA
POST, XXXXXXX INTERNATIONAL, INC. DEL ECUADOR COMPANIA LIMITADOR
POST, XXXXXXX INTERNATIONAL, INC., LTD. (SWAZILAND)
("Guarantors")
TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms........................................1
Section 1.02 Accounting Terms.............................................5
ARTICLE II - AMOUNTS AND TERMS OF ADVANCES
Section 2.01 Revolving Line of Credit.....................................5
Section 2.02 Letters of Credit............................................8
Section 2.03 Computation of Interest......................................8
Section 2.04 Payments.....................................................9
Section 2.05 Fees.........................................................9
Section 2.06 Prepayment...................................................9
ARTICLE III - CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to Lending..............................9
Section 3.02 Conditions Precedent to all Lending.........................10
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties..............................11
ARTICLE V - COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants Other Than
Reporting Requirements......................................14
Section 5.02 Reporting Requirements......................................16
Section 5.03 Negative Covenants..........................................17
Section 5.04 Financial Covenants.........................................22
ARTICLE VI - EVENTS OF DEFAULT
Section 6.01 Events of Default...........................................22
Section 6.02 Action if Event of Default..................................24
ARTICLE VII - MISCELLANEOUS
Section 7.01 No Waiver; Cumulative Remedies..............................25
Section 7.02 Amendments..................................................25
Section 7.03 Notices.....................................................25
Section 7.04 Costs, Expenses and Taxes...................................25
Section 7.05 Right of Setoff.............................................26
Section 7.06 Further Assurances..........................................26
Section 7.07 Execution in Counterparts...................................26
Section 7.08 Binding Effect; Assignment..................................27
TABLE OF CONTENTS
(Continued)
Section 7.09 Governing Law...............................................27
Section 7.10 Severability................................................27
Section 7.11 Headings....................................................27
Section 7.12 Waiver of Trial by Jury.....................................27
EXHIBITS
Exhibit A. Form of Revolver Note
Exhibit A-1. Form of Revolver Note
Exhibit B. Form of Guarantee
Exhibit C. Form of Corporate Resolutions - Guarantor
Exhibit D. Form of Corporate Resolutions and Incumbency and
Signature Certificate Borrower
Exhibit E. Form of Borrower's Counsel's opinion
Exhibit F. Form of Officer's Certificate
Exhibit G. Form of Subordination Agreement
Exhibit H. Form of "Bring Down" certificate
SCHEDULE
Schedule 1. List of Subsidiaries
NATIONSBANK, N.A. (SOUTH), ("NationsBank") and SUNTRUST BANK, MIAMI,
N.A. ("SunTrust"), both national banking associations (individually and
collectively the "Lender"); POST, XXXXXXX, XXXXX & XXXXXXXX, INC., a Florida
corporation, and THE PBSJ Corporation, a Florida corporation ("PBSJ") (jointly
and severally; individually and collectively the "Borrower") ; and SEMINOLE
DEVELOPMENT CORPORATION, a Florida corporation ("Seminole"); POST, XXXXXXX,
XXXXX & XXXXXXXX, INC., a California corporation; POST, XXXXXXX, XXXXX &
XXXXXXXX, INC., a Nevada corporation; HOH ASSOCIATES, INC., a Florida
corporation; POST, XXXXXXX INTERNATIONAL, INC., a Florida corporation; PBS&J
CONSTRUCTION SERVICES, INC., a Florida corporation; MEASUREMENT SCIENCE, INC.,
a Virginia corporation; SEMINOLE INVESTMENTS, INC., a California corporation;
POST, XXXXXXX, XXXXX & XXXXXXXX, INC., a Texas corporation; POST, XXXXXXX, XXXXX
& XXXXXXXX, INC. OF ARIZONA, an Arizona corporation; POST, XXXXXXX
INTERNATIONAL, INC. DEL ECUADOR COMPANIA LIMITADOR, an Ecuadorian corporation;
POST, XXXXXXX INTERNATIONAL, INC., LTD. (SWAZILAND), a Swaziland corporation
(jointly and severally; collectively, the "Guarantors"), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Agreement" means this Credit Agreement, and all amendments thereto.
"Advance" means an extension of credit by a Lender to the Borrower
pursuant to Section 2.01(a) of this Agreement.
"Affiliate" means any person, corporation, association or other
business entity which controls, or is controlled by, or is under common control
with the Borrower or a Subsidiary.
"Borrowing" has the meaning assigned to ;it in Section 2.01(a) of this
Agreement.
"Business Day" means any day of the year on which commercial banks in
the City of Miami are open for the conduct of normal business.
"Default Rate" means a rate equal at all times to the sum of the Prime
Rate (as hereinafter defined) and five percent (5%) per annum.
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"EBITDA" means the Borrower's Net Income before deductions for
interest expense, income taxes, depreciation and amortization.
"EBITL" means the Borrower's Net Income before deductions for interest
expense, income taxes and lease expense.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended, and all related provisions of the Internal Revenue Code of 1954, as
amended, together with all applicable rulings and regulations issued under the
provisions of either of them.
"Effective Date" means the first day in any Interest Period (as such
term is defined in Section 2.01(c) of this Agreement).
"Events of Default" has the meaning assigned to that term in Section
7.01 of this Agreement.
"Fixed Advance" means an Advance at an interest rate which is fixed
during an Interest Period.
"Fixed Charge Coverage" means EBITL, divided by interest expense plus
lease expense.
"Fluctuating Advance" means an Advance at an interest rate which
changes with changes in the Prime Rate or in the LIBOR. "Funded Debt"' means all
obligations for money borrowed, whether or not evidenced by notes, bonds,
debentures or other similar instruments, and all obligations under conditional
sale or other title retention agreements or capitalized leases and all
obligations issued or assumed as full or partial payment for property, whether
or not secured by a purchase money mortgage, but shall not include accounts
payable, accrued expenses and taxes payable.
"Generally Accepted Accounting Principles" mean generally accepted
accounting principles as applied in the United States and in effect from time to
time, consistently applied.
"Guarantee" means the irrevocable and unconditional guarantee in
favor of the Lender from the Guarantors.
"Guarantors" shall have the meaning assigned to said term in the
introduction to this Agreement and shall also include each Subsidiary of the
Borrowers which is created after the date hereof.
"Indebtedness" means (without duplication) (I) all liabilities or other
obligations of such corporation for borrowed
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money or for the unpaid portion of the purchase price off property or services;
(ii) all liabilities or other obligations of any other Person for borrowed money
or for the unpaid portion of the purchase price of property or services the
payment or collection of which such corporation has guaranteed (except by reason
of endorsement for collection in the ordinary course of business) or in respect
of which such corporation is liable, contingently or otherwise, including,
without limitation, liable by way of agreement or purchase, to provide funds for
payment, to supply funds to or otherwise to invest in such other Person, or
otherwise to assure a creditor against loss; (iii) all liabilities or other
obligations of any other Person for borrowed money or for the unpaid portion of
the purchase price of property or services secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) any mortgage, deed of trust, pledge, lien, security interest or
other charge or encumbrance upon or in property (including, without limitation,
accounts, as such term is defined under the Florida Uniform Commercial Code),
owned by such corporation, whether or not such corporation has assumed or become
liable for the payment of such indebtedness or obligations; (iv) capitalized
lease obligations of such corporation; (v) unfunded vested benefits under each
plan maintained for employees of such Person and covered by Title IV of ERISA;
and (vi) all liability or other obligation of such corporation, whether
contingent or absolute, matured or unmatured, arising under or in connection
with the drafting under any letter of credit.
"Investment" shall, when used with the reference to any investment of
any Person, mean any loan or advance made by it to any other Person, any
guarantee or other Indebtedness on the part of such Person in respect of any
capital stock, Indebtedness or other obligations or liabilities of any other
Persons and any other investment made by such Person in any other Person,
including, without limitation, any investment (however acquired) in stock or
other ownership interest in any other Person, and the outstanding amount of any
Investment in any other Person shall be considered to be the original amount
thereof less 'returns of principal or Capital thereof (and without adjustment by
reason of the financial condition of such other Person).
"LIBOR" shall mean an interest rate per annum equal to the London
Interbank Offered Rates for 30, 90 or 180 day periods as published each business
day in the money rate section of The Wall Street Journal (or N.Y. Times in the
event The Wall Street Journal no longer exists or ceases to publish LIBOR rates)
without adjustment by Lender.
"LIBOR Loan" shall have the meaning ascribed to such term in Section
2.01(c) of this Agreement.
"Line" means collectively the NationsBank Line and the SunTrust Line.
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"Letter of Credit" shall have the meaning ascribed to such term in
Section 2.02 of this Agreement. "Loan Documents" mean the Note, the Agreement,
the Guarantees, and the Subordination Agreements.
"Maximum Rate" means a rate equal at all times to the highest lending
rate permitted under Florida or Federal law whichever is higher or unlimited.
"Net Income" means after tax income determined in accordance with
Generally Accepted Accounting Principles consistently applied.
"Note" means each Revolver Note to be delivered by Borrower to each
Lender.
"Person" means an individual, corporation, partnership, joint venture,
trust, or unincorporated organization, and any government or any agency or
political subdivision thereof.
"Prime Rate" means that rate of interest determined and quoted by the
Lender from time to time as a means of pricing some loans to its customers and
is neither tied to any external rate of interest or index nor does it
necessarily reflect the lowest rate of interest actually charged by the Lender
to any particular class or category of the Lender's customers.
"Subordinated Debt" shall mean all indebtedness of the Borrower or any
Guarantor to any (I) Affiliate; (ii) Subsidiary; (iii) Guarantor; (iv)
Stockholder of Borrower; (v) Stockholder of (I), (ii) or (iii); provided,
however, Subordinated Debt shall not include indebtedness incurred by the
Borrower solely in connection with the repurchase of PBSJ capital stock from
employees or former employees of Borrower; provided further, however,
Subordinated Debt shall not include indebtedness incurred by the Borrower in
connection with lease payments made by Borrower to Seminole in the ordinary
course of business and not to exceed fair market rental value for the lease by
Borrower of office and warehouse facilities owned by Seminole; or (vi) third
party to the extent such indebtedness is permitted under Section 5.03(a)(viii)
of this Agreement. "Subordination Agreements" mean agreements for the
subordination of indebtedness of the Borrower or any Subsidiary to the prior
payment of the Indebtedness on terms approved in writing by the Lender prior to
the date hereof or to the operation thereof and for the subordination of
indebtedness which is permitted under Section 5.03(a)(iii) through (ix) of this
Agreement.
"Subsidiary" means any other corporation more than 50% of the
outstanding shares of capital stock of which having ordinary voting power for
the election of directors is owned directly or indirectly by Borrower.
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"Tangible Net Worth" means the aggregate amount of consolidated assets
shown on the consolidated balance sheet of PBSJ and its subsidiaries at any
particular date (but excluding from such assets, capitalized organization and
development costs, capitalized interest, debt discount and expenses, goodwill,
patents, trademarks, copyrights, franchises, licenses, amounts due from
officers, employees, directors, stockholders and affiliates, and such other
assets as are properly classified "intangible assets" under Generally Accepted
Accounting Principles) less consolidated liabilities at such date, including
drafts outstanding under letters of credit all computed in accordance with
Generally Accepted Accounting Principles applied on a consistent basis.
"Telegram" means any message transmitted by radio, teletype, cable, any
mechanical method of transmission or the like.
"Termination Date", has the meaning assigned to that term in Section
2.01(a) of this Agreement.
Section 1.02. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with Generally Accepted
Accounting Principles consistent with those applied in the preparation of the
consolidated financial statements referred to in Section 5.01(d) and all
consolidated financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
ARTICLE 11
AMOUNTS AND TERMS OF ADVANCES
Section 2. The Lender agrees, on the terms and conditions hereinafter
set forth, to make the following loans to the Borrower:
Section 2.01. Revolving Line of Credit.
(a) Amount. (I) NationsBank agrees to make advances
("Advances") to the Borrower from time to time during the period from the date
hereof to and including June 30, 1999 (the "Maturity Date") or the earlier date
of termination under Section G.02 (such earlier date being the "Termination
Date") in an aggregate amount not to exceed at anytime and from time to time
outstanding the principal amount of Seven Million Dollars (U.S. $7,000,000.00)
("NationsBank Line"). Within the limits of the NationsBank Line, the Borrower
may borrow (a "Borrowing"), repay,, and reborrow under this Section 2.01;
provided, no Event of Default has occurred and is continuing and the outstanding
balance under the NationsBank Line never exceeds $7,000,000.00.
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(ii) SunTrust agrees to make Advances to the Borrower
from time to time during the period from the date hereof to and including the
earlier of the maturity Date or the Termination Date in an aggregate amount
not to exceed at any time and from time to time outstanding the principal sum of
Five Million Dollars ($5,000,000.00) ("SunTrust Line"). Within the limits of the
SunTrust Line, the Borrower may borrow, repay and reborrow under this Section
2.01 provided no Event of Default has occurred and is continuing and the
outstanding balance under the SunTrust Line never exceeds $5,000,000.00.
(iii) in the event for any reason the Advances
outstanding at any time exceed the aggregate amount permitted in this Section
2.01, the Borrower shall pay cash to the Lender in such amount as is necessary
to reduce the outstanding principal balance of the Advances to the aggregate
amount permitted hereunder.
(b) The Revolver Note. All Advances made by the Lender under
the NationsBank Line and the SunTrust Line, respectively, shall be evidenced
by two (2) promissory notes in substantially the forms attached hereto as
Exhibit A and Exhibit A-1 ("Revolver Notes").
(c) Interest. The Borrower agrees to pay interest on that
portion of the outstanding principal amount of the Revolver Note maintained from
time to time as a (x) Fluctuating Advance equal at all times, at Borrower's
option, to (I) the Lender's Prime Rate minus one percent (1.0%) ("Prime Rate
Option"); (ii) the LIBOR for 30 day periods, adjusted daily, plus.-seventy-five
(75) basis points ("LIBOR Floating Option"), or (y) Fixed Advance equal to the
LIBOR plus seventy-five (75) basis points ("LIBOR Fixed Option"), which shall be
quoted for a 30, 90 or 180 day term. If Borrower selects the LIBOR Fixed Option,
it shall simultaneously advise the Lender whether such selection is for a thirty
(30), ninety (90) or one hundred eighty (180) day period (defined herein as the
"Interest Period"), and the applicable interest rate for the LIBOR Fixed Option
shall remain effective for the Interest Period. Not later than 10:00 a.m. two
(2) Business Days prior to commencement of any Interest Period as to which the
LIBOR Fixed Option is intended to apply, Borrower shall give telephone
instructions to the Lender (confirmed in writing) of its elected interest rate
option for the next Interest Period. The failure of the Borrower to give such
instructions shall conclusively be presumed to be an election by Borrower to
select the Prime Rate option.
If Borrower has selected the Prime Rate Option, then Borrower
may elect, at any time, to change the interest rate option by telephone notice
(confirmed in writing) to the Lender no later than 10:00 a.m. on the date the
changed interest rate is to become effective. In the event that the LIBOR is not
determinable, then the Prime Rate Option shall apply.
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In the event Borrower has selected the LIBOR Fixed Option with
respect to any Interest Period, such selection shall be subject to the following
terms and provisions:
(I) If, at any time, the Lender shall have determined
(which determination shall be final and conclusive and binding on the parties
hereto), that, as a result of any change in any applicable law or governmental
(federal, state or local, domestic or foreign) rule, regulation or order or any
interpretation thereof (including, without limitation, the introduction of any
new or revised law or governmental rule, regulation or order) or its compliance
with any directive or request of any central bank or other governmental
authority (whether or not having the force of law), the cost to such Lender (s)
of making, funding or maintaining the portion of the Loans which then is subject
to one or more LIBOR Fixed Options (a "LIBOR Loan" or "LIBOR Loans") has
increased from its cost at the time of the commencement of the relevant Interest
Period, then the Lender shall promptly so notify Borrower and give Borrower
reasonably sufficient detail as to the reason for the increased costs as well
as an accounting as to the amount of any claimed increases) in cost; and
Borrower shall pay to the Lender, an amount sufficient to reimburse such Lender
for such increased cost.
(ii) In the event the Lender shall have determined
(which determination shall be binding and conclusive on Borrower) that, by
reason of circumstances affecting the relevant markets for the LIBOR Floating
Option or the LIBOR Fixed Option, adequate and reasonable means do not exist for
determining and/or calculating the rate applicable to the LIBOR Floating-option
or the LIBOR Fixed Option with respect to (a) the continuation of the LIBOR
Floating Option or the LIBOR Fixed Option then in existence pursuant to a prior
request of Borrower, or (b) any request by Borrower to change the Prime Rate
Option then in existence to a LIBOR Floating Option or the LIBOR Fixed Option,
the Lender shall promptly notify Borrower by telephone (confirmed in writing) of
such determination. Upon receipt of such notice, the Prime Rate Option shall be
in effect until the Lender notifies Borrower that it may resume selection of the
LIBOR Fixed Option or LIBOR Floating Option.
In any case where Borrower may select an interest rate option
but fails or neglects to do so, then the Prime Rate Option shall apply. Any
changes in the interest rate herein set forth which are due to changes in the
Prime Rate shall take effect on the date of the changes in the Prime Rate.
Following the occurrence of a monetary Event of Default or an
Event of Default under Section 6.02 of this Agreement which has not been cured
to the satisfaction of the respective Lender for whom the Event of Default
applies and until such cure of an Event of Default, unless otherwise waived by
Lender, the principal balance outstanding shall bear interest at the Default
Rate.
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The last day in the interest Period (when considered with
respect to the Effective Date) shall be a Business Day; if not, such last day
shall be changed to the immediately-preceding Business Day. Interest accrued on
the indebtedness evidenced by the Revolver Note prior to maturity shall be
payable monthly in arrears on the first day of each month commencing August 1,
1996; provided, however, all interest accrued on LIBOR Fixed Loans shall be due
and payable at the conclusion of the relevant Interest Period for each LIBOR
Fixed Option.
(d) Making the Advance. Each Advance shall be made upon notice
from the Borrower to the Lender at the Lender's Office specifying the date and
amount of the Advance. Upon the fulfillment of the applicable conditions set
forth in Article IV hereof, the Lender will make such funds available to the
Borrower at the Lender's office at the address specified under Section 7.03
under this Agreement.
(e) Repayment of Advances. All outstanding Advances evidenced
by the Revolver Note shall be repaid on the earlier of (I) the date of demand if
an Event of Default has occurred; or (ii) the Maturity Date.
(f) Use of Line Proceeds. The Line loan proceeds shall be used
by the Borrower for general corporate purposes.
Section 2.02. Letters of Credit.
(a) The Lender may, from time to time, up to and including
June 29, 1999 open letters of Credit (an "Opening") for the account of the
Borrower (each, a "Letter of Credit" and collectively, "Letters of Credit");
provided, however, that no Letter of Credit shall have an expiry date
subsequent to the Maturity Date unless otherwise agreed to by the Lenders. The
form and substance of each Letter of Credit shall be subject to approval by
Lender in its sole discretion. The aggregate undrawn amount of all outstanding
Letters of Credit shall not at any time exceed Three Million Dollars
($3,000,000.00). The Lender who has opened a Letter of Credit for the account of
the Borrower shall notify the other Lender of such action. At the time any draft
(the "Draft") is paid by the Lender, the full amount of such Draft shall be
immediately due and payable by the Borrower, together with interest thereon,
from the date such amount is paid by the Lender to the date such amount is fully
repaid by Borrower. In the event the Lender agrees to accept a Draft the
Borrower agrees to pay interest on the full amount thereof at the rate agreed
upon before the acceptance was created.
Section 2.03. Computation of Interest. All computations of interest
hereunder or under the Note shall be made by the Lender on the basis of an
assumed year of 360 days for the actual number of days elapsed not to exceed,
however, the Maximum Rate. Interest
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shall accrue on the date an Advance is made by Lender but not on the date that
repayment is received by Lender provided that such funds are received not later
than 2:00 p.m. on any Business Day.
Should any interest or other charges paid by the Borrower, howsoever
characterized or computed, after taking into account any commitment fee or other
charges which may be deemed in the nature of interest, result in the computation
or earning of interest in excess of the Maximum Rate, then any and all of such
excess shall be and the same is hereby waived as interest by the Lender and
shall be automatically credited against, and in reduction of, the principal
amounts owing to the Lender in the inverse order of their maturities.
Section 2.04. Payments. All payments of principal and interest
hereunder or under the Note shall be made at the Lender's Office in immediately
available funds. Whenever any payment to be made hereunder or under the Note
shall be stated to be due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall in such case be included in the computation of payment of interest
hereunder or under the Note.
Section 2.05. Fees. In consideration of the Lender's agreeing to
establish the Line the Borrower agrees to pay to each Lender an annual fee
payable quarterly in advance equal to seventeen and one-half (17.5) basis points
of the amount of the NationsBank Line or the. SunTrust Line, as the case maybe.
The annual fee for 1996 shall be payable on the date this Agreement is signed by
the Borrower and the Lender. Thereafter, the annual fee shall be due and payable
quarterly in advance on the first day of each July, October, January and April
of 1997, 1998 and 1999.
Section 2.06. Prepayment. The Borrower shall be permitted to make
prepayments of principal on any Fluctuating Advance. The Borrower shall not be
permitted to make prepayments of any principal amounts outstanding prior to the
expiration of the applicable interest Period with respect to any Fixed Advance.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Condition Precedent to Lending. The obligation of the
Lender to make its initial Advance is subject to the condition precedent that
the Lender shall have received for the account of the Lender, on or before the
day of the initial Borrowing, funding or Opening, all of the following, each
dated the day of the initial Borrowing, funding or issuance, in form and
substance satisfactory to the Lender:
(a) The Revolver Note;
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(b) The Guarantees in substantially the form of Exhibit B
attached hereto and a certified copy of the resolutions of the Board of
Directors of each of the Guarantors evidencing approval of the Guarantees in
substantially the form of Exhibit C attached hereto;
(c) A certified copy of the resolutions of the Board of
Directors of the Borrower, in substantially the form attached hereto as Exhibit
D, evidencing approval of this Agreement and the other Loan Documents and other
matters contemplated hereby, and all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement and the Loan Documents including, but not limited to, a certificate of
"good standing" (or its equivalent), certified copies of the articles of
incorporation and true and correct copies of the bylaws;
(d) A favorable opinion of Counsel for Borrower, in
substantially the form attached hereto as Exhibit E, as to the due execution and
delivery by the Borrower of this Agreement and the other Loan Documents and as
to such other matters as the Lender may reasonably request;
(e) A signed copy of a certificate of the Secretary or an
Assistant Secretary of the Borrower, in substantially the form attached hereto
as Exhibit F who shall certify the names of the officers of the Borrower
authorized to sign this Agreement and the other Loan Documents and the other
documents or certificates to be delivered Pursuant to this Agreement by the
Borrower or any of its officers, together with the true signatures of such
officers (Lender may conclusively rely on such certificate until it shall'
receive a further certificate of the Secretary or an Assistant Secretary of the
Borrower canceling or amending the prior certificate and submitting the
signatures of the officers named in such further certificate];
(f) A certified copy of the written approval and consent of
the holders, if any, of any obligations of the Borrower which must consent to
this Agreement and the Borrowings hereunder; and
(g) A Subordination Agreement, in substantially the form
attached hereto as Exhibit G, to be signed by each holder of debt of the
Borrower other than Lender, if any, or unless waived by Lender.
Section 3.02. Conditions Precedent to all Lending. The obligation of
the Lender to (I) make an Advance on the occasion of each Borrowing (including
the initial Borrowing); and (ii) to open the Letter of Credit shall be subject
to the further conditions precedent that on the date of such Borrowing or
Opening the following statements shall be a true and correct and the Lender
shall have received for the account of the Lender, as soon as possible and in
any event within thirty (30) days after the end of each
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quarter of each fiscal year of Borrower, a certificate, in substan- tially the
form attached hereto as Exhibit H, signed by the President, Vice President or
by any other duly authorized officer of the Borrower, solely in such corporate
capacity, stating that, based on an examination which in the opinion of the
signer is sufficient to enable him to make an informed statement, to the best of
his knowledge:
(I) The representations and warranties contained in
Section 4.01 are correct on and as of the date of each Borrowing or
open- ing as though made on and as of such date except to the extent
that such representations and warranties specifically relate to an
earlier date or are affected by the transaction contemplated under this
Agreement; and
(ii) No event has occurred and is continuing or would
result from such Borrowing or Opening, which constitutes an Event of
Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties. Each of the Borrower and
the Guarantors represents and warrants to the Lender as follows:
(a) Organization. Borrower and each Guarantor is a corporation
duly incorporated, validly existing, and in "good standing" (or its equivalent)
under the laws of the jurisdiction indicated at the beginning of this Agreement;
is duly qualified as a foreign corporation in all jurisdictions in which its
present operations or properties require such qualification; and has all
requisite power and authority, corporate or otherwise, to conduct its business,
to own its properties, and to execute and deliver and to perform all of its
obligations under the Loan Documents.
(b) Due Authorization. The execution, delivery and performance
by the Borrower and the Guarantors of the Loan Documents have been authorized by
all necessary corporate action and do not and will not contravene any legal or
contractual restriction binding on the Borrower and the Guarantors or any of
their properties.
(c) Validity. This Agreement constitutes, and each of the
other Loan Documents (including the Guarantees) when
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executed and delivered hereunder will constitute, the legal, valid and binding
obligations of the Borrower and the Guarantors, as the case may be, enforceable
against the Borrower and the Guarantors in accordance with their terms, subject
only to bankruptcy, insolvency, reorganization, moratorium or similar laws at
the time in effect affecting the enforceability of rights of creditors in
general.
(d) Financial Information. The drafts of the consolidated
balance sheet of the Borrower, the Guarantors and their Affiliates as at March
31, 1996 and the consolidated statement of income and cash flow of the Borrower,
the Guarantors and their Affiliates for the six (6) months then ended, prepared
by Borrower copies of which have been furnished to the Lender, fairly present
the financial position of the Borrower as at such date and the results of the
operations of the Borrower, the Guarantors and their Affiliates for the six (6)
month period ended on such date, all in accordance with Generally Accepted
Accounting Principles applied consistently throughout the periods involved and
since March 31, 1996 there has been no material adverse change in such position.
(e) Litigation. There are no actions, arbitrations or
governmental investigations, inquiries or proceedings, including RICO claims,
pending or, to the knowledge of the Borrower or the Guarantors, threatened
against the Borrower or the Guarantors or their properties before any court or
governmental instrumentality, which, it determined adversely to the Borrower or
the Guarantors, would have a material adverse effect on the financial position,
properties, or operations of the Borrower and the Guarantors taken as a whole.
(f) Subsidiaries. Set forth on Schedule I hereto is a complete
and accurate list of the Subsidiaries of Borrower, if any, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of each incorporation,
the number of shares of each class of capital stock authorized, and the number
outstanding on the date hereof, and the percentage of the outstanding shares of
each such class owned (directly or indirectly) by the Borrower a and the number
of shares covered by all outstanding options, warrants, rights of conversion or
purchase, and similar rights at the date hereof. All of the outstanding capital
stock of all Subsidiaries of Borrower, if any, have been validly issued, are
fully paid and nonassessable and are owned by the Borrower or one or more of the
Subsidiaries free and clear of all mortgages, deeds of trust, pledges, liens,
security interests and other charges or encumbrances. Each of the Subsidiaries
is duly incorporated, validly existing and in "good standing" (or its
equivalent) under the laws of the jurisdiction of its incorporation and each is
duly qualified as a foreign corporation in all jurisdictions in which its
present operations or properties require such qualification.
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(g) Securities. No proceeds of any Advance will be used to
acquire any security in any transaction which is subject to Sections 13 and 14
of the Securities Exchange Act of 1934.
(h) Regulation U. The Borrower is not engaged in the business
of obtaining credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System) , and no proceeds of any loan hereunder will be used to
purchase or carry any margin stock or to extend credit to any other Person for
the purpose of purchasing or carrying any margin stock.
(I) Taxes. Each of the Borrower and the Guarantors represents
that (I) it has filed all tax returns required by law; (ii) all filed tax
returns accurately reported its liabilities; (iii) all reported tax liabilities
have been paid (unless they are being contested in good faith and by appropriate
proceedings) ; and (iv) no Internal Revenue Service or Florida Department of
Revenue (or similar taxing authorities or agencies from other states)
examinations are pending or expected.
(j) Insolvency. Each of the Borrower and, on a consolidated
basis, the Guarantors: (I) is not and, following the execution and delivery of
this Agreement and the Guarantees, will not be "insolvent" as such term is
defined in Section 101 of the Bankruptcy Reform Act of 1978, as amended (the
"Act"); (ii) does not have and, following the execution and delivery of this
Agreement and the Guarantees, will not be left with, an "unreasonably small
capital" within the meaning of Section 548 of the Act; and (iii) in entering
into and carrying out its obligations under this Agreement and the Guarantees,
does not intend to hinder, delay or defraud any Person to which it is or may
become indebted, and does not intend to incur, or does not believe that it would
incur, debts beyond its ability to pay as such debts mature within the meaning
of said Section 548.
(k) Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrower and
the Guarantors to the Lender for the purposes of or in connection with this
Agreement or any transactions contemplated hereby is, and all other such
factual information hereafter furnished by or on behalf of the Borrower and the
Guarantors to the Lender will be, true and accurate in every material respect on
the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information not
misleading.
(l) Enforceability. Borrower is not aware of any matter which
would render unenforceable, in whole or in part, any of the Loan Documents.
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(m) Laws. To the best of its knowledge, Borrower is in
material compliance with all applicable laws, rules, regulations and orders
relating to the conduct of its business, including those pertaining to hazardous
waste and materials and other environmental laws.
ARTICLE V
COVENANTS OF THE BORROWER AND GUARANTORS
Section 5.01. Affirmative Covenants Other Than Reporting Requirements.
So long as any Indebtedness evidenced by the Note shall remain unpaid, the
Borrower, each Guarantor and each Subsidiary of the Borrower or each Guarantor
will, unless the Lender shall otherwise consent in writing:
(a) Payment of Taxes and Other Charges. Pay and discharge all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, prior to the date
on which penalties attach thereto, and all lawful claims which, if unpaid, might
become a lien or charge upon any properties of the Borrower, provided that the
Borrower or such Subsidiary shall not be required to pay any such-tax,
assessment, charge, levy or claim which is being contested in good faith and by
appropriate proceedings and for which adequate reserves have been established on
its books.
(b) Compliance with Laws. Comply in all material respects with
all applicable laws, rules, regulations and orders relating to the conduct of
its business.
(c) Maintenance of Insurance. Maintain insurance with
responsible and reputable insurance companies or associations and contain a
cancellation clause providing not less than thirty (30) days prior written
notice to Lender, in such amounts and covering such risks, including, but not
limited to, comprehensive general liability in an amount not less than Five
Million Dollars ($5,000,000.00) flood, hazard, fire and professional errors and
omissions insurance, as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Borrower, the Guarantors or their Subsidiaries, if any, operate; provided,
however, the Borrower shall maintain comprehensive general and professional
liability insurance for Construction Services in an amount not less than
$1,000,000.
(d) Preservation of Corporate Existence. Preserve and maintain
its corporate existence, rights, franchises and privileges and remain
qualified, as a foreign corporation, in each jurisdiction in which such
qualification is necessary or desirable
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in view of its business and operations or the ownership of its properties.
(e) Keeping of Records and Books of Account. Keep adequate
records and books of account reflecting all of its business affairs and
transactions in accordance with Generally Accepted Accounting Principles
consistently applied and permit the Lender (by any of its officers, employees
and/or agents) to inspect, audit and make extracts from all of the Borrower's
records, files and books of account, and to enter and inspect the Borrower's
offices during normal business hours upon reasonable notice to Borrower. The
Borrower shall deliver any document or instrument necessary to the Lender to
obtain records from any service bureau maintaining records for the Borrower. All
reasonable out-of-pocket costs, fees and expenses incurred by the Lender
(other than salaries paid to the Lender's employees), or for which the Lender
has become obligated, in connection with such inspection and/or verification
shall be payable by the Borrower to the Lender. The Lender agrees to hold in
confidence the Borrower's proprietary information obtained pursuant to this
Agreement and shall not disclose the same to any third party except (I) as
required by law or by judicial or administrative process or to appropriate
regulatory authorities or as such information is or becomes public knowledge
other than by virtue of the Lender's disclosure; and (ii) to the extent that the
Lender, in its sole discretion, needs to disclose such information to agents or
professionals it retains to recover the obligations arising hereunder from the
Borrower.
(f) Maintenance of Tangible Net Worth. Maintain, on a
quarterly basis, a minimum Tangible Net Worth greater than or equal to the
Tangible Net Worth of Borrower at September 30, 1995, with an annual increase in
Tangible Net Worth throughout the balance of the Term equal to fifty percent
(50%) of Borrower's Net Income for the fiscal year ended September 30, 1996 and
for each succeeding fiscal year end during and throughout the entire term of
this Agreement.
(g) Performance and Compliance with Other Agreements.
Perform all the obligations to be performed pursuant to the terms of each
material indenture, agreement, contract and other instrument by which it is
bound, unless the same shall be contested in good faith by appropriate
proceedings by the Borrower or where performance thereof is prevented through no
fault of the Borrower.
(h) Maintenance Free from Security Interests. Maintain the
Borrower's assets free and clear of all security interests and liens whatsoever
(except the security interest's in favor of the Lender, if any, and as otherwise
permitted 'or contemplated under this Agreement).
(I) Fixed Charge Coverage Ratio. Maintain, on a quarterly
basis, beginning September 30, 1996, for the Borrower's
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previous four (4) quarters taken as a whole, a Fixed Charge Coverage Ratio of
not less than 1.3 to 1.0 during and throughout the entire term of this
Agreement.
(j) Funded Debt Ratio. Maintain, on a quarterly basis, a ratio
of Funded Debt to EBITDA not greater than 2.50 to 1.0 computed on a four (4)
quarter rolling basis during and throughout the entire term of this Agreement.
Section 5.02. Reporting Requirements. So long as any indebtedness
evidenced by the Note shall remain unpaid, the Borrower, the Guarantors and
their Subsidiaries will, as the case may be, unless the Lender shall otherwise
consent in writing, furnish to the Lender:
(a) As soon as available and in any event within one hundred
twenty (120) days after the end of each fiscal year of the Borrower and the
Guarantors, Borrower shall provide to Lender a consolidated audited financial
statement and consolidating unaudited financial statement, all such financial
statements to be prepared in conformity with Generally Accepted Accounting
Principles. The audited financial statements shall be prepared by Coopers &
Xxxxxxx or other independent public accountants of recognized standing selected
by Borrower but reasonably acceptable to the Lender together with a certificate
of such accounting firm stating that in the course of the regular audit of the
business of the Borrower said firm has obtained no knowledge that an Event of
Default or an event which, with the giving of notice or lapse of time or both,
would constitute an Event of Default, has occurred and is continuing or if, in
the opinion of such firm, an Event of Default or an event which, with notice or
lapse of time or both, would constitute an Event of Default has occurred and is
continuing, a statement as to the nature thereof.
(b) As soon as possible and in any event within forty-five
(45) days after the end of each quarter of each fiscal year of the Borrower and
the Guarantors, an unaudited consolidated financial statement as of the end of
such quarter attested to by the Chief Financial Officer of the Borrower and the
Guarantors with respect to the accuracy and completeness of the aforesaid
financial information and accompanied by a certificate of the Chief Financial
Officer stating that he has no knowledge that an Event of Default or an event
which, with notice or lapse of time or both, would constitute an Event of
Default has occurred and is continuing;
(c) As soon as possible and in any event within twenty (20)
days after the end of each month of each fiscal year' of the Borrower, a
detailed summary and analysis of aging of Accounts;
(d) As soon as possible and in any event within forty-five
(45) days after the end of each quarter of each fiscal
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year of the Borrower, a backlog report as customarily prepared by Borrower;
(e) Promptly after the filing or receiving thereof, copies of
all reports and notices which the Borrower files, or after the occurrence of a
reportable event as defined or any other event or condition which might
constitute grounds for the termination of, or for the appointment of a trustee
to administer, any plan under ERISA with the Pension Benefit Guaranty
Corporation ("PBGC") or the U.S. Department of Labor ("Department") or which the
Borrower receives from the PBGC or Department;
(f) immediately, but not later than three (3) days after
discovery of an Event of Default but in any case, not later than seven (7) days
after the occurrence of each Event of Default or each event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default,
continuing on the date of such statement, the statement of the chief financial
officer of the Borrower setting forth details of such Event of Default or event
which, with the giving of notice or lapse of time or both, would constitute an
Event of Default and the action which the Borrower proposes to take with respect
thereto;
(g) Promptly notify the Lender of the commencement of any
material claims (other than claims under a policy of insurance (excluding the
Letter of Credit) in amounts which, together with any interest accrued thereon,
do not exceed the face value of such policy), actions, suits, proceedings or
investigations of any kind pending or threatened against the Borrower or any
Subsidiary or any Affiliate before any court, tribunal or administrative agency
or board.
(h) Borrower shall promptly inform the Lender of (I)
Borrower's failure or inability to perform on contracts over $1,000,000.00 in
the aggregate; and (ii) material information of which the Borrower has confirmed
knowledge relating to the material adverse change in the financial condition of
any account debtor who owes at least $1,000,000.00 to the Borrower.
Section 5.03. Negative Covenants. So long as any Indebtedness evidenced
by the Note shall remain unpaid, the Borrower, the Guarantors and their
Subsidiaries will not, without the prior written consent of the Lender:
(a) Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except (I) Indebtedness of the Borrower under the Loan Documents;
(ii) Indebtedness of the Borrower and the Guarantors maturing not more than
thirty (30) days from the date created and incurred in the ordinary course of
business (trade credits) (iii) Indebtedness of the Borrower and the Guarantors
otherwise permitted under this Agreement; (iv) Indebtedness of PBSJ in
connection with the repurchase of PBSJ capital stock from
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employees or former employees of Borrower or its Subsidiaries; (v) Indebtedness
of the Borrower and Guarantors pertaining to purchase money security interests
not to exceed one Million Dollars ($1,000,000.00) in the aggregate at any time
outstanding; (vi) Indebtedness of the Borrower and the Guarantors existing on
the date hereof, as set forth on the Borrower's and the Guarantors financial
statements dated June 30, 1996, including, but not limited to, Indebtedness
arising under that certain first mortgage loan made by NationsBank to Borrower
dated May 17, 1993; provided, however, the Borrower and the Guarantors shall be
permitted to refinance any mortgage existing on the date hereof which is secured
by the real property of the Borrower or the Guarantors; provided further,
however, the amount of the Indebtedness incurred as a result of such refinancing
shall not exceed the principal balance outstanding and secured by the mortgage
on the date of said refinancing; (vii) Indebtedness of the Borrower and the
Guarantors or any Subsidiary thereof not to exceed Five Million Dollars
($5,000,000) in the aggregate which is incurred pursuant to unsecured amortizing
financing provided by sellers in connection with acquisitions made by the
Borrower and the Guarantors or any Subsidiary thereof as otherwise permitted
under this Agreement; (viii) Indebtedness of the Borrower and the Guarantors
arising in connection with Subordinated Debt other than Indebtedness permitted
under Sections 5.03(a)(vii) and (ix) of this Agreement; provided, however, (x)
such Subordinated Debt shall be unsecured, (y) the Borrower and the Guarantors
shall not be permitted to make principal payments on the Subordinated Debt
during the term of this Agreement; except Borrower and the Guarantors shall be
permitted to make interest payments so long as no Event of Default has occurred
under this Agreement, and (z) the holder of such Subordinated Debt shall execute
and deliver to Lender a Subordination Agreement; (ix) Indebtedness of any
Subsidiary not to exceed Five Million Dollars ($5,000,000.00) in the aggregate
which is incurred pursuant to secured financing provided by (a) sellers or (b)
other creditors which is pre-existing at the time of the acquisitions made by
the Borrower and the Guarantors or any Subsidiary thereof; provided, however, if
the seller financing is secured by mortgages, liens or security interests in
real estate, fixtures or fixed assets, then the amount of Indebtedness otherwise
permitted under 5.03(a)(vii) above shall be reduced by the full amount of such
secured financing and; provided further, however, if such seller or other
creditor financing is secured by liens or security interests in any other assets
which are acquired by Borrower, Guarantors or any Subsidiary, then such
Indebtedness will be repaid so that all such security interests will be
terminated within thirty (30) days of the date of such acquisition. Anything
herein to the contrary notwithstanding, the Borrower and the Guarantors shall
not be permitted to incur additional Indebtedness under (v), (vii), (viii) and
(ix) above if an Event of Default has occurred under this Agreement.
(b) Liens and Encumbrances. Create, incur, assume or suffer to
exist any mortgage, deed of trust, pledge, lien, security
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interest, or other char or encumbrance (including the lien or retained security
title of a conditional vendor) of any nature or any other type of preferential
arrangement, upon or with respect to any of its properties, now owned or
hereafter acquired, or assign or otherwise convey, any right to receive income,
except that the foregoing restrictions shall not apply to:
(I) liens for taxes, assessments or governmental
charges or levies on property of the Borrower if the same shall not at
the time be delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate proceedings;
(ii) liens imposed by law, such as landlord's,
carriers', warehousemen's and mechanics, liens and other similar liens
arising in the ordinary course of business;
(iii) liens arising out of pledges or deposits under
workmen's compensation laws, unemployment insurance, repairmen's,
materialmen's and other like liens arising in the ordinary course of
business in respect of obligations which are not due or are being
contested in good faith;
(iv) liens or security interests existing on the date
of this Agreement as disclosed on Schedule 11 hereto; and
(v) liens or security interests covering real or
personal property and in existence at the time of acquisition thereof
by the Borrower, Guarantors or the Subsidiaries and purchase money
mortgages and purchase money security interests (including the lien or
retained security title of a conditional vendor) covering real or
personal property hereafter acquired by the Borrower, the Guarantors
or Subsidiaries provided (A) the obligations secured thereby do not
exceed 100% of the purchase prince or fair market value of such
property, whichever is less, (B) the obligations secured thereby are
otherwise permitted hereunder or any other agreements of whatever
nature to which the Borrower, the Guarantors or the Subsidiaries is a
party and (C) no such lien, mortgage or security interest covers, or
is extended to cover, any other property owned by the Borrower, the
Guarantors or the Subsidiaries.
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(c) Assumptions and Guarantees of Indebtedness of Other
Persons. Assume, guarantee, indorse or otherwise, become directly or
contingently liable in connection with any obligation of any other Person
(except by endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business) except for guarantees
(other than the Guarantee of each Guarantor) permitted under this Agreement
which shall not exceed, including all other Indebtedness, $5,000,000.00 in the
aggregate; provided, however, Borrower shall be permitted to indemnify its
officers and directors in accordance with the provisions set forth under its
bylaws and/or articles of incorporation. Anything herein to the contrary
notwithstanding, the Borrower and the Guarantors shall not be permitted to
assume, guarantee, indorse or otherwise, become directly or contingently liable
in connection with any obligation incurred by Borrower, the Guarantors, any
Subsidiary or any Person in connection with Section 5.03(a)(ix) of this
Agreement.
(d) Sale or Other Disposal of Assets. Sell, lease, sell and
leaseback, assign, transfer or otherwise dispose of all or a substantial portion
of its assets, including Accounts and shares of stock of whatever type except as
otherwise permitted under this Agreement.
(e) Dividends. Declare or pay any dividends on any of its
capital stock now or hereafter outstanding or return any capital or make any
distribution of assets to shareholders in excess of fifty percent (50%) of
Borrower's Net Income for the immediately preceding fiscal year.
(f) Change in Nature of Business, Ownership, or Management.
Make or permit to be made, any material change in the nature of its business as
carried on at the date hereof or permit any change in the current ownership
structure as an employee-owned entity; provided, however, Borrower shall be
permitted to engage in business activities other than those currently conducted
by Borrower to the extent that Borrowers' aggregate gross- revenue attributable
to all such other business activities on a consolidated basis represent less
than ten percent (10%) of Borrower' s consolidated gross revenue taken as a
whole.
(g) Consolidated Tax Return. Make any consolidated tax return
with respect to its income with any other corporation except any Subsidiary or
Subsidiaries.
(h) Subordinated Debt. Make any prepayments on and/or
restructure any Subordinated Debt af ter an Event of Default shall have occurred
and is continuing af ter the expiration of applicable grace periods, if any, or
unless waived by Lender.
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(I) Merger. Merge into or consolidate with or into any
corporation; for the purposes of this subparagraph (I), the acquisition by the
Borrower or any Subsidiary by lease, purchase or otherwise, of all or
substantially all of the assets of any corporation shall be deemed a merger of
said corporation with the Borrower or such Subsidiary except that any Subsidiary
may merge into or consolidate with any other Subsidiary of the Borrower or merge
into the Borrower so long as the Borrower is the surviving corporation other
than any Subsidiary which has incurred secured Indebtedness in connection with
seller or other creditor financing as otherwise permitted under Section 5.03 (a)
of this Agreement. Anything herein to the contrary notwithstanding, Borrower or
any Subsidiary shall be permitted, without limitation except for subsection (f)
above and the limitations set forth in the preceding sentence of this Section
5.03 (I) , to acquire by merger, any Person, provided that Borrower, or a
Subsidiary, is the surviving corporation.
(j) Subsidiary. Except as otherwise permitted under 5.03(f),
(I) and (m), organize any other Subsidiary unless prior written consent is
obtained f rom Lender, which consent shall not be unreasonably withheld or
delayed; provided, however, such Subsidiary shall Guarantee the Loan and shall
execute a Guarantee in the form attached hereto as Exhibit "B" unless such
requirement for a Guarantee shall be waived by Lender.
(k) Shares of Stock. Authorize, issue, grant or sell any
shares of its capital stock except to employees.
(1) Loans. Make any loan or advance or extend credit to any
Person except to (I) Affiliates of Borrower (ii) employees of Borrower, in the
ordinary course of Borrower's business, not to exceed in the aggregate One
Hundred Thousand Dollars ($100,000.00); and (iii) employees of Borrower and its
Subsidiaries in connection with the purchase by such employees of PBSJ capital
stock.
(m) Acquisition. Acquire or invest in any Person (excluding
individuals) or the assets of any Person (excluding individuals) whereby such
acquisitions or investments would exceed the limitations on aggregate gross
revenues as set forth under subsection (f) above.
(n) Investments. Except as otherwise permitted under 5.03 (f)
and (m), make any investments of Borrower's or Guarantor's funds other than
investments existing on the date of this Agreement and disclosed to Lender and
short term investments with a maturity of less than twelve (12) months and which
are specifically limited to (I) government securities issued by the United
States of America or agencies thereof; (ii) Certificates of Deposit issued by
banks insured by the Federal Deposit insurance Corporation with a minimum
capitalization of Fifty Million Dollars
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(U.S. $50,000,000.00) commercial paper and money market instruments rated
"investment grade" by Xxxxx'x investor Services, Inc. or Standard & Poor's
Corp.; and (iv) mutual funds; provided, however, anything herein to the contrary
notwithstanding, the Guarantors shall be permitted to make capital investments
of their funds in the Borrower; provided, further, however, if any such
investment by the Guarantors shall be deemed to be indebtedness of the Borrower,
then such indebtedness shall be characterized and treated as Subordinated Debt
as provided under this Agreement.
Section 5.04. Financial Covenants. Anything herein to the contrary
notwithstanding, the Borrower and the Lender agree that all financial covenants
referred to under this Agreement shall be measured on a consolidated basis which
includes (I) the Borrower; (ii) the Guarantors; and (iii). any Affiliates
(excluding directors and officers of Borrower, the Guarantors and Subsidiaries)
of either (I) or (ii).
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. The term, "Event of Default", shall
mean any of the following events that shall occur and be continuing after the
expiration of applicable cure periods, if any, or unless waived by Lender:
(a) The Borrower shall fail to pay when due any installment of
principal of or interest under the Note or under any of the other Loan Documents
and such default continues unremedied for ten (10) consecutive days after
written notice thereof shall have been given to the Borrower by the Lender or
the holder of the Note; or
(b) Any material representation or warranty made by the
Borrower or the Guarantors herein or by the Borrower (or any of its officers) in
any certificate, agreement, instrument or written statement made or delivered
pursuant to or in connection with this Agreement, shall prove to have been
incorrect in any material respect on the date as of which the facts set forth
are stated or certified; or
(c) The Borrower or the Guarantors shall default in the due
performance and observance of any of its agreements contained in Section
5.01(f), (I), (j) or Section 5.03; or
(d) The Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or in the other Loan
Documents on its part to be performed or observed and any such failure remains
unremedied for thirty (30) days after written notice thereof shall have been
given to the Borrower by the Lender or the holder of the Note and the remedy
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period has not been extended by the Lender or the holder of the Note; or
(e) The Borrower shall fail to pay any Indebtedness for
borrowed money or the unpaid portion of the purchase price of property (other
than as evidenced by the Note) owing by the Borrower or any interest or premium
thereon in excess of Two Hundred Thousand Dollars ($200,000.00) in the
aggregate, when due, whether such obligation shall become due by scheduled
maturity, by required prepayment, by acceleration, by demand or otherwise; or
the Borrower shall fail to perform any material term, covenant or agreement on
its part to be performed under any agreement or instrument (other than this
Agreement) evidencing or securing or relating to any such obligation owing by
the Borrower when required to be performed if the effect of such failure is to
accelerate, or to permit the holder or holders of such obligation or the trustee
or trustees under any such agreement or instrument to accelerate, the maturity
of such obligation, whether or not such failure to perform shall be waived by
the holder or holders of such Indebtedness or such trustee or trustees;
provided, however, nothing in this subsection shall require the payment or
performance of any obligation, as aforesaid, provided the Borrower contests by
appropriate legal proceedings diligently conducted in good faith, without cost
or expense, including attorneys' fees, to the Lender, any such payment or
performance; or
(f) The entry o f a decree or order for relief by a court
having jurisdiction in the premises in respect of the Borrower in an involuntary
case under the federal bankruptcy, insolvency or other similar law, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar officer) of the Borrower or for any substantial part of the property
of the Borrower or requiring the winding-up or liquidation of its affairs and
the continuance of any such decree or order unstayed and in effect for a period
of thirty (30) consecutive days; or
(g) The commencement by the Borrower of a voluntary case under
the federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or the consent by the Borrower to the appointment of and taking possession by a
custodian, receiver, trustee, liquidator, assignee, sequestrator (or other
similar official) of the Borrower or for any substantial part of the property of
the Borrower or the making by the Borrower of any assignment for the benefit of
creditors, or the failure of the Borrower to pay its debts as such debts become
due, as the same is construed under Section 303 of the Bankruptcy Code or the
taking of action by the Borrower in furtherance of any of the foregoing; or (h)
Any final judgments or orders in an aggregate amount in excess of Two Hundred
Fifty Thousand Dollars ($250,000.00) shall be entered against the Borrower and
such judgments or orders shall continue unsatisfied or the repayment thereof
shall not be fully
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bonded within thirty (30) days after their issuance or are not otherwise still
being contested in good faith by appropriate proceedings which stay the effect
thereof; or
(I) Any monies, deposits or other property of the Borrower, in
excess of Two Hundred Fifty Thousand Dollars ($250,000.00) in the aggregate, now
or hereafter on deposit with or in the possession or under the control of the
Lender shall be attached or become subject to distrained proceedings or any
order or process of any court and remains unremedied for thirty (30) days after
written notice shall have been given to the Borrower by the Lender; or
(j) The certificate of the certified public accountants
required to be delivered to the Lender pursuant to Section 5.02 (a) shall
contain any material exception indicating a material adverse change in the
financial condition, properties, or operations of the Borrower which would
impair the Borrower's ability to repay the Loan; or
(k) The occurrence of any material adverse change in the
financial position of the Borrower and/or condition of the property of the
Borrower which would impair the Borrower's ability to repay the Loan.
(1) Any material change in the nature of the corporate
existence of Borrower which has a material adverse effect on the Borrower.
(m) Occurrence of an event of default by Borrower under any
other credit facility established by Lender in favor of Borrower so that an
event of default under any credit facility shall cause all credit facilities to
be in default, unless Lender waives such default or it is otherwise cured.
Section 6.02. Action if Event of Default. If any Event of Default shall
occur for any reason, whether voluntary or involuntary, and be continuing, the
Lender shall, by notice to the Borrower, declare the right of the Borrower to
request Advances to be terminated--whereupon the same shall forthwith terminate.
Further, the Lender may, upon notice to the Borrower, declare the entire unpaid
principal amount evidenced by the Note, all interest accrued and unpaid thereon
and all other amounts payable under the Letter of Credit and this Agreement to
be forthwith due and payable, whereupon the Indebtedness evidenced by the
Note, the Letter of Credit, all such accrued interest, and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest, or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided however, if an Event of Default is an event described
in Section 6.01(f) or (g), above, the right of the Borrower to request Advances
shall automatically terminate and the Indebtedness of the Borrower to the
Lender
-24-
shall forthwith, without notice to or demand upon the Borrower, be due and
payable.
ARTICLE VII
MISCELLANEOUS
Section 7.01. No Waiver; Cumulative Remedies. No failure or delay on
the part of the Lender or any other holder of any Note in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 7.02. Amendments. No amendment, modification, termination, or
waiver of any provision of this Agreement or of the other Loan Documents nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Lender, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No notice to or demand on the Borrower in
any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
Section 7.03. Notices. All notices, requests, demands, directions and
other communications provided for hereunder shall be in writing (including
telegraphic communication) and if to any party, addressed or delivered to it at
its address set forth below its signature on the signature pages hereof, or at
such other address as shall be designated by such party in a written notice to
each other party complying as to delivery with the terms of this Section. All
such notices, requests, demands, directions, and other communications shall,
when mailed or telegraphed, be effective when deposited in the -mails or
delivered to the telegraph company, respectively, addressed as aforesaid.
Section 7.04. Costs, Expenses and Taxes. The Borrower agrees to pay, on
request, all reasonable costs and expenses of the Lender in connection with the
preparation, execution and delivery, and the Lender's costs and expenses in
connection with this Agreement, the other Loan Documents, and the other
instruments and documents to be delivered hereunder, including the reasonable
fees and out-of-pocket expenses of counsel for the Lender with respect thereto,
and, after an event of default has occurred, all costs and expenses, if any, in
connection with the enforcement of this Agreement, the other Loan Documents, or
any other instruments and documents to be delivered hereunder. In addition, the
Borrower shall pay any and all excise (documentary stamp) and other taxes
(including interest and penalties for failure to have paid same) payable or
determined to be payable, whether prior to or simulta-
-25-
neously with the initial Advance or Opening or at any time thereafter, in
connection with the execution and delivery of this Agreement, the other Loan
Documents and the other instruments and documents to be delivered hereunder, and
agrees to save the Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes.
Anything herein to the contrary notwithstanding, the Borrower shall not be
obligated to pay to Lender amounts incurred by Lender for attorneys' fees in
connection with any matters arising under this Agreement in which the Borrower
is the prevailing party.
Section 7.05. Right of Setoff. Upon the occurrence and during the
continuance of any Event of Default, the Lender or any bank which participates
in any loan to the Borrower with the Lender in connection herewith is hereby
authorized at any time and from time to time, without notice to the Borrower
(any such notice being expressly waived by the Borrower), to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other Indebtedness at any time owing by the Lender or
participant to or for the credit or the account of the Borrower against any and
all Indebtedness of the Borrower now or hereafter existing under this Agreement
and the other Loan Documents or in connection with any participant,
irrespective of whether or not the Lender shall have made any demand under this
Agreement or the other Loan Documents and although such obligations may be
unmatured. The Borrower agrees that the Indebtedness of the Borrower to the
Lender shall be deemed to run to the Lender and its participant as if the Note
had initially been executed and delivered by Borrower to the order of the Lender
and its participant (s). The Lender agrees promptly to hotif y the Borrower
after any such setoff and application made by the Lender or the Lender's
participant, provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Lender may have.
Section 7.06. Further Assurances. Borrower and the Guarantors agree to
execute any and all further documents and instruments that may be required under
applicable law or which the Lender may reasonably request in order to effectuate
the transactions contemplated by this Agreement.
Section 7.07. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when 'so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same instrument.
-26-
Section 7.08. Binding Effect; Assignment. This Agreement shall become
effective when it shall have been executed by the Borrower and the Lender and
thereafter shall be binding upon and inure to the benefit of the Borrower and
the Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lender which consent the Lender may
grant or withhold in its discretion.
Section 7.09. Governing Law. This Agreement and each of the other Loan
Documents shall be governed by, and construed in accordance with, the laws of
the State of Florida (except as to those matters relating to interest rates or
other lending terms which are or may, at the election of the Lender, be governed
by United States (Federal) law].
Section 7.10. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 7.11. Headings. Article and Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 7.12. WAIVER OF TRIAL BY JURY. THE BORROWER AND, THE GUARANTORS
IN DELIVERING AND THE LENDER IN ACCEPTING DELIVERY OF THIS CREDIT AGREEMENT,
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS CREDIT AGREEMENT AND ANY DOCUMENT EKECUTED
AND DELIVERED BY THE BORROWER AND THE GUARANTORS TO THE LENDER IN CONJUNCTION
WITH THIS CREDIT AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY OR ANY DIRECTOR,
OFFICER, EMPLOYEE, AGENT OR INDEPENDENT CONTRACTOR OF THEM. THIS IS A MATERIAL
INDUCEMENT TO LENDER TO ENTER INTO THE CREDIT AGREEMENT WITH THE BORROWER -AND
THE GUARANTORS.
-27-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LENDER:
NATIONSBANK, N.A. (SOUTH)
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Title: Vice President
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Vice President
Commercial Banking
SUNTRUST BANK, MIAMI, N.A.
By: /s/ XXXXXX XXXXXXXXXXX
---------------------------------------------
Title: Vice President
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx
Attn: Xxxxxx Xxxxxxxxxxx
Corporate Banking
-28-
BORROWER:
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxx
Title: Exec. Vice President
0000 X.X. 000xx Xxx.
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
THE PBSJ CORPORATION,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxx.
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
GUARANTORS:
SEMINOLE DEVELOPMENT CORPORATION,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxx.
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
-29-
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("this Amendment") dated this
3rd day of July, 1997 among NATIONSBANK, N.A. (SOUTH) ("NationsBank") and
SUNTRUST BANK, MIAMI, N.A. ("SunTrust") (collectively the "Lender"); POST,
XXXXXXX, XXXXX & XXXXXXXX, INC., a Florida corporation, and THE PBSJ
CORPORATION, a Florida corporation (collectively the "Borrower"); and SEMINOLE
DEVELOPMENT CORPORATION, a Florida corporation; HOH ASSOCIATES, INC., a Florida
corporation; POST, XXXXXXX INTERNATIONAL, INC., a Florida corporation; PBS&J
CONSTRUCTION SERVICES, INC., a Florida corporation; MEASUREMENT SCIENCE, INC., a
Colorado corporation; SEMINOLE INVESTMENTS, INC., a California corporation;
POST, XXXXXXX, XXXXX & XXXXXXXX, INC. OF ARIZONA, an Arizona corporation; POST,
XXXXXXX INTERNATIONAL, INC. DEL ECUADOR COMPANIA LIMITADOR, an Ecuadorian
corporation; POST XXXXXXX INTERNATIONAL, INC., LTD. (SWAZILAND), a Swaziland
corporation; POST XXXXXXX, XXXXX & XXXXXXXX, INC., a California corporation;
POST, XXXXXXX, XXXXX & XXXXXXXX, INC., a Nevada corporation; and POST, XXXXXXX,
XXXXX & XXXXXXXX, INC., a Texas corporation (jointly and severally the
"Guarantors")
PRELIMINARY STATEMENTS
A. The Lenders, the Borrower and the Guarantors entered into that
certain Credit Agreement, dated June 28, 1996 (the "Credit Agreement") by which
NationsBank established a revolving line of credit for the Borrower in the
principal amount of $7,000,000.00 and SunTrust established a revolving line of
credit for the Borrower in the principal mount of $5,000,000.00.
B. The Borrower and the Guarantors have requested each of the Lenders
to make the Borrower a term loan of $5,000,000.00 each to enable the Borrower to
make a loan to EH&A Acquisition, Inc. ("EHA") to enable it to acquire all of the
issued and outstanding shares of stock of Xxxxx Xxxxxx & Associates, Inc., a
Texas corporation ("Xxxxx"); said loan to be secured by a pledge to the
Borrower, The PBSJ Corporation ("PBSJ"), of all of the shares of Xxxxx purchased
by EHA.
C. The Lenders are agreeable to making the term loans but only in
accordance with the terms of this Amendment.
IN CONSIDERATION OF the Preliminary Statements and the mutual covenants
hereinafter set forth, the parties agree as follows:
1. All of the Preliminary Statements are true and correct and, by this
reference, republished and confirmed. All
of the terms of the Credit Agreement are incorporated into this Amendment as if
fully set forth herein.
2. The Credit Agreement is amended as follows:
A. Section 1.01 is amended as follows:
(i) the definition of "Fixed Charge Coverage" is deleted in its
entirety and the following substituted in place thereof:
"Fixed Charge Coverage" means EBITL divided by interest expense
plus lease expense plus current maturities of the Term Loans (as
hereinafter defined).
(ii) By deleting the definition of "Loan Documents" in its
entirety and substituting the following in place thereof:
"Loan Documents" mean the Revolver Notes, the Term Notes, the
Credit Agreement, the First Amendment to Credit Agreement, the
Guarantees and the Subordination Agreements and all amendments,
renewals and substitutions of any of the aforesaid documents.
(iii) By adding the following definition of "Maturity Date":
"Maturity Date" shall mean, as to the Revolving Lines of Credit,
June 30, 1999 and, as to the Term Loans, June 30, 2002 except as
provided in Subsection (iv) of Section 2.07 of the Amendment.
(iv) The definition of "Note" is deleted in its entirety and the
following substituted in place thereof:
"Note" means collectively each Revolver Note heretofore delivered
to each Lender and each Term Note to be delivered by Borrower to
each Lender.
B. Article II is amended by adding Section 2.07 thereto as follows:
- 2 -
Section 2.07 Term Loan
(i) (1) NationsBank agrees to make a term loan to the Borrower in
the principal amount of Five Million Dollars (U.S. $5,000,000.00)
(the "NationsBank Term Loan").
(2) SunTrust agrees to make a term loan to the Borrower in the
principal amount of Five Million Dollars (U.S. $5,000,000.00) (the
"SunTrust Term Loan").
(ii) Term Notes. The NationsBank Term Loan shall be evidenced by a
promissory note in substantially the form attached hereto as
Schedule A and the SunTrust Term Loan shall be evidenced by a
promissory note in substantially the form attached hereto as
Schedule B (the NationsBank Term Loan and the SunTrust Term Loan are
herein sometimes referred to collectively as the "Term Loans").
(iii) Interest. The Borrower agrees to pay interest on each of the
Term Loans at the rate and on the terms set forth in and in
accordance with the provisions of Section 2.01(c) of the Credit
Agreement.
(iv) Principal. Borrower shall make an annual principal payment on
each anniversary of the Term Notes in an amount equal to twenty
percent (20%) of the principal amount originally funded under the
Term Loans. Provided no Event of Default or an event, which the
giving of notice or lapse of time, would constitute an Event of
Default has occurred and is continuing, the Borrower shall have the
right to reborrow any principal sums paid in reduction of the Term
Loans in any fiscal year in excess of the annual principal payment
required to be made hereunder provided any amount so borrowed does
not cause the principal amount outstanding under the Term Notes to
exceed $5,000,000.00 less the sum of any required annual payments.
The availability of reborrowing shall terminate on June 30, 2002,
when all outstanding principal under the Term Notes shall be due and
payable in full; provided, however, anything in the First Amendment
to Credit Agreement or any other agreement between the Borrower and
the Lender to the contrary notwithstanding, in the event PBSJ does
not acquire all of the issued and out-
- 3 -
standing shares of stock of EHA OR ESPGY on or before July 3, 1998,
all outstanding principal, plus all accrued but unpaid interest
thereon, evidenced by the Term Notes shall be due and payable in
full on July 3, 1998, without notice to or demand upon the Borrower.
(v) Fees. In consideration of the Lenders' agreeing to make the Term
Loans, the Borrower agrees to pay to each Lender, in addition to the
fees due the Lender under the Revolving Loans, an annual fee payable
quarterly in advance equal to seventeen and one-half (17.5) basis
points of the committed amount of the NationsBank Term Loan or the
SunTrust Term Loan, as the case may be, as follows:
Year Committed Amount Annual Fee
1 $5,000,000.00 $8,750.00
2 $4,000,000.00 $7,000.00
3 $3,000,000.00 $5,250.00
4 $2,000,000.00 $3,500.00
5 $1,000,000.00 $1,750.00
The annual fee for 1997 shall be payable on the date of this
Amendment. Thereafter, the annual fee shall be due and payable
quarterly in advance on the first day of each July, October, January
and April of each year until the Maturity Date of the Term Loans.
(vi) Credit Agreement. All of the terms of the Credit Agreement as
amended by this Amendment shall be as applicable to the Term Loans
as if said Term Loans were made at the time of the Revolving Loans
and shall survive the repayment of the Revolving Loans.
(vii) Security. As security for the repayment of the indebtedness
evidenced by the Term Notes and the First Amendment to Credit
Agreement, PBSJ shall (i) endorse to the Lender its interest as
payee under that certain Promissory Note in the principal amount of
$12,000,000.00 from EHA to PBSJ ("EHA Note"); (ii) assign and
transfer to the
- 4 -
Lender PBSJ's interest in and to (x) that certain Loan Agreement and
that certain Security Agreement from EHA to PBSJ by which EHA
granted a security interest in and pledged to PBSJ all of the issued
and outstanding shares of stock in Xxxxx ("EHA Loan and Security
Agreements"), and (y) Guaranty from Xxxxxxx Xxxxxx to PBSJ by which
Xxxxxxx Xxxxxx guaranteed the obligation of EHA to PBSJ ("Jasper
Guaranty"), and (iii) deliver to the Lender all of the shares of
stock of Xxxxx with duly signed blank stock powers, ("Shares).
(viii) Simultaneously with the execution of the buy/sell agreement
between the PBSJ Corporation and GHCA/GSPGY Paragraph C.2.B. (iv)
becomes null and void.
C. Subsection (f) of Section 5.01 of the Agreement is deleted in its
entirety and the following substituted in place thereof.
(f) Maintenance of Tangible Net Worth. Maintain, on a quarterly
basis, Tangible Net Worth as of September 30, 1996 of $26,000,000
plus 50% of the Borrower's Net Income less (i) incremental
intangibles, including non-compete agreements and net redemptions of
common stock up to $2,500,000 for fiscal years 1997 and 1998; and
(ii) $4,500,000 for the acquisition of all of the shares in EHA,
provided such purchase is consummated on or before July 3, 1998.
D. Subsection (l) of Section 5.03 of the Agreement is amended by
deleting the word "and" before "(iii)" and adding a semi-colon and the
following: "and (iv) EHA in the principal amount of $12,000,000.00 for the
sole purpose of enabling EHA to acquire all of the issued and outstanding
shares of stock in Xxxxx.
E. Section 6.01 is amended by adding thereto the following:
(n) Any default under the Revolver Notes and any provisions of the
Credit Agreement specifically applicable thereto shall
constitute a default under the Term Notes and any provisions of
the Credit Agreement specifically applicable thereto and vice
versa.
(o) Failure of the Borrower to acquire all of the issued and
outstanding shares of stock of Xxxxx or GH&A on or before July
3, 1998; provided, however, this shall not be deemed an Event of
Default as to the Revolver Loans.
- 5 -
F. Article VII is amended by adding Section 7.13 thereto as follows:
Section 7.13. Jurisdiction and Venue. The parties hereto agree that
any suit, action or proceeding brought by any such party against
another party to the Credit Agreement arising under or in connection
with the Credit Agreement, this Amendment or any document or
instrument prepared or delivered in connection therewith shall be
brought in any state or federal court having a situs located in the
City of Miami, Dade County, Florida.
3. It is a condition precedent to the Lenders' making and funding the
Term Loans that the Borrower shall have delivered to the Lenders the following:
(a) This Amendment duly signed;
(b) The Term Notes and Out-of-State Signing Certificates duly
signed;
(c) The other documents required under Section 3.01(b) through (g),
inclusive, of the Credit Agreement;
(d) The Continuing Unlimited Guaranty of the Guarantors;
(e) The EHA Note, the EHA Loan and Security Agreements, the Jasper
Guaranty, the Shares and Stock Powers ("EHA Documents");
(f) Financing Statements to evidence the Lender's interest in EHA
Documents; and
(g) Opinion of Counsel to the Borrower in form and substance
acceptable to the Lender and its counsel.
Provided, however, the Borrower shall have thirty (30) and the
Guarantors 90 days from the date of this Amendment and the funding of the Term
Loans to satisfy all of the conditions precedent to the Lender's funding the
Term Loans. The Borrower and the Guarantors shall use their best efforts to
satisfy all said conditions. The failure of the Borrower and/or Guarantors to
satisfy all said conditions (unless waived in writing by the Lender) shall
constitute an Event of Default under the Credit Agreement and the Term Notes.
- 6 -
4. Except as amended hereby, all of the other terms and conditions of
the Loan Documents shall remain in full force and effect and be as binding on
the Borrower and the Guarantors as if the provisions hereof originally
constitute part of the Loan Documents. In the event of any conflict,
inconsistency or incongruity between the terms of the Loan Documents (excluding
the Term Notes and this Amendment) and the terms of this Amendment, the terms of
this Amendment shall govern and control.
5. Further Assurances. Borrower and the Guarantors agree to execute any
and all further documents and instruments that may be required under applicable
law or which the Lender may reasonably request in order to effectuate the
transactions contemplated by this Amendment.
6. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
7. Binding Effect; Assignment. This Amendment shall become effective
when it shall have been executed by the Borrower and the Lender and thereafter
shall be binding upon and inure to the benefit of the Borrower and the Lender
and their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender which consent the Lender may grant or
withhold in its discretion.
8. Governing Law. This Amendment and each of the other Loan Documents
shall be governed by, and construed in accordance with, the laws of the State of
Florida [except as to those matters relating to interest rates or other lending
terms which are or may, at the election of the Lender, be governed by United
States (Federal) law].
9. Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
10. Headings. Article and Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
- 7 -
11. WAIVER OF TRIAL BY JURY. THE BORROWER AND THE GUARANTORS IN
DELIVERING AND THE LENDER IN ACCEPTING DELIVERY OF THIS AMENDMENT, KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED ON OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AMENDMENT AND ANY DOCUMENT EXECUTED AND DELIVERED BY THE
BORROWER AND THE GUARANTORS TO THE LENDER IN CONJUNCTION WITH THIS AMENDMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF ANY PARTY OR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT OR INDEPENDENT
CONTRACTOR OF ANY OF THEM. THIS IS A MATERIAL INDUCEMENT TO LENDER TO ENTER INTO
THIS AMENDMENT WITH THE BORROWER AND THE GUARANTORS.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LENDER:
NATIONSBANK, N.A. (SOUTH)
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Xxxxxx X. Xxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Vice President
Commercial Banking
SUNTRUST BANK, MIAMI, N.A.
By: /s/ XXXXXX X. XXXXXXXXXXX
-------------------------------------------
Title: Vice President
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx
Attn: Xxxxxx Psomopolos
Vice President
- 8 -
BORROWER:
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
0000 X.X. 000xx Xxx.
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
THE PBSJ CORPORATION, a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxx.
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
GUARANTORS:
SEMINOLE DEVELOPMENT CORPORATION,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxx.
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
- 9 -
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Second Amendment")
dated as of the 30th day of June, 1999 among NATIONSBANK, N.A. ("NationsBank")
and WACHOVIA BANK, N.A. ("Wachovia") (collectively, the "Lender"); POST,
XXXXXXX, XXXXX & XXXXXXXX, INC., a Florida corporation, and THE PBSJ
CORPORATION, a Florida corporation (collectively, the "Borrower"); and SEMINOLE
DEVELOPMENT CORPORATION, a Florida corporation; POST, XXXXXXX INTERNATIONAL,
INC., a Florida corporation; PBS&J CONSTRUCTION SERVICES, INC., a Florida
corporation; and PBS&J CONSTRUCTORS, INC., a Florida corporation (jointly and
severally, the "Guarantors").
PRELIMINARY STATEMENTS
A. NationsBank and SunTrust Bank, Miami, N.A. ("SunTrust";
collectively, with NationsBank, the "Original Lender"), the Borrower, the
Guarantors (except PBS&J CONSTRUCTORS, INC.) and certain other entities then
affiliated with the Borrower (collectively with all Guarantors except PBS&J
CONSTRUCTORS, INC., the "Original Guarantors") entered into that certain Credit
Agreement, dated June 28, 1996 (the "Credit Agreement") by which NationsBank
established for the Borrower both a revolving line of credit in the principal
amount of $7,000,000.00 (the "NationsBank Line") and a letter of credit facility
in the principal amount of $3,000,000.00 (the "L/C Facility"), and SunTrust
established a revolving line of credit for the Borrower in the principal amount
of $5,000,000.00 (the "SunTrust Line").
B. The Original Lender, the Borrower and the Original Guarantors
entered into that certain First Amendment to Credit Agreement, dated July 3,
1997 (the "First Amendment") by which each of the Lenders established in favor
of the Borrower a reducing revolving line of credit in the amount of
$5,000,000.00 each (the "NationsBank Term Loan" and the "SunTrust Term Loan,"
respectively) to enable the Borrower to make a loan to EH&A Acquisition, Inc.
("EHA") to enable it to acquire all of the issued and outstanding shares of
stock of Xxxxx Xxxxxx & Associates, Inc., a Texas corporation ("Xxxxx"); said
loan to be secured by a pledge to the Borrower, THE PBSJ CORPORATION ("PBSJ"),
of all of the shares of Xxxxx purchased by EHA.
C. Since the date of the First Amendment, certain of the Original
Guarantors have been merged into POST, XXXXXXX, XXXXX & XXXXXXXX, INC. so that
the Guarantors currently constitute all of the subsidiaries of PBSJ.
D. On June 28, 1999, Wachovia made a $5,000,000.00 bridge loan to Post,
Xxxxxxx, Xxxxx & Xxxxxxxx, Inc. (the "Bridge Loan"), evidenced by a promissory
note in said amount (the "Bridge Note").
E. Effective as of June 30, 1999, SunTrust assigned all of its right,
title and interest (1) in the SunTrust Line to Wachovia, and (2) in the SunTrust
Term Loan to NationsBank.
F. The Borrower and the Guarantors have requested (1) NationsBank to
increase the principal amount of the NationsBank Line to $22,000,000.00 and
extend its maturity date to June 30,
2002, and (2) Wachovia to consolidate the Bridge Loan into, and increase to
$15,000,000.00 the principal amount of, the SunTrust Line and extend its
maturity date to June 30, 2002.
G. The Lenders are agreeable to the aforesaid requests, but only in
accordance with the terms of this Second Amendment.
IN CONSIDERATION OF the Preliminary Statements and the mutual covenants
hereinafter set forth, the parties agree as follows:
1. The foregoing statements are true and correct and are incorporated
herein as if set forth in full.
2. Unless otherwise defined herein, all terms used herein shall have
the definitions specified in the Credit Agreement, as modified by the First
Amendment; all references hereinafter made to the Credit Agreement to include
the modifications thereto effectuated pursuant to the First Amendment.
3. The Borrower and the Guarantors (collectively, the "Obligors") each
confirm and acknowledge that, as of the date hereof, the principal balances due
(a) NationsBank under (i) the NationsBank Line is $80,000.00, and (ii) the Term
Loans is $6,000,000.00, and (b) Wachovia under (i) the SunTrust Line is $-0-,
and (ii) the Bridge Loan is $5,000,000.00; each plus accrued interest since the
date last paid, all free and clear of any defense, set-off or counterclaim.
4. The Credit Agreement is hereby modified as follows (all references
to Sections and Subsections being the applicable Sections and Subsections of the
Credit Agreement):
5. The Credit Agreement is amended as follows:
A. Section 1.01 is amended as follows:
(i) in the definition of "Fixed Charge Coverage", the following
terms are added at the end of such definition, immediately following
the words "lease expense":
plus current maturities of long term debt plus current maturities
of capital leases.
(ii) the definition for the term "Guarantors" shall include the
revisions thereto reflected in the introduction to this Second
Amendment.
(iii) the existing definition of "Maturity Date" is deleted in
its entirety and replaced by "June 30, 2002."
(iv) the defined term "Tangible Net Worth" and its definition are
deleted in their entirety.
B. Section 2.01 is amended as follows:
- 2 -
(i) in Subsection (a)(i), the date "June 30, 2002" is substituted
for the date "June 30, 1999," and the amount "Twenty-Two Million
Dollars ($22,000,000.00)" is substituted for the amount "Seven
Million Dollars ($7,000,000.00)" wherever such amount appears.
(ii) in Subsection (a)(ii), (x) each reference to "SunTrust"
shall be replaced by a reference to "Wachovia" (and all other
references in the Credit Agreement to the SunTrust Line or to
SunTrust in connection with the SunTrust Line shall similarly refer
to the Wachovia Line or Wachovia, as applicable), (y) the amount
"Fifteen Million Dollars ($15,000,000.00) is substituted for the
amount "Five Million Dollars ($5,000,000.00) wherever such amount
appears, and (z) the following terms are added immediately following
the end of the second sentence:
Insofar as the Borrower may from time to time request and
Wachovia may be willing, in its discretion, Wachovia shall,
subject to the terms and conditions hereof, issue commercial
and/or standby letters of credit (the "L/C's") for the account of
the Borrower. The issuance of an L/C shall be regarded as, and
subject to the conditions applicable to, an Advance, and the face
amount of each then issued and outstanding L/C as well as the
amount of each then unreimbursed draft presented for payment
against an L/C shall each be treated as an outstanding Advance.
Prior to each and every request for the issuance of an L/C, the
Borrower shall execute and deliver to Wachovia any and all
agreements and documents which Wachovia may require, including,
without limitation, Wachovia's standard form of application for
letter of credit. The maximum amount of all open L/C's and
unreimbursed drafts which have been presented for payment against
the L/C's shall not, at any one time, exceed the aggregate amount
of One Million Dollars ($1,000,000.00). In connection with each
L/C, the Borrower shall pay to Wachovia an issuance fee in the
amount of 1% per annum of the amount of each L/C.
(iii) the forms of Revolver Notes attached hereto as Exhibit A
and Exhibit A-1 are substituted for the forms of Revolver Notes
similarly attached to the Credit Agreement.
(iv) the first sentence of the first paragraph of Subsection (c)
is hereby deleted in its entirety and the following provisions are
substituted in lieu thereof:
The Borrower agrees to pay interest on that portion of the
outstanding principal amount of the Revolver Note maintained from
time to time as a (x) Fluctuating Advance equal at all times, at
Borrower's option, to (i) the Lender's Prime Rate minus the
Applicable Margin (hereinafter defined) ("Prime Rate Option"); or
(ii) the LIBOR for 30 day periods, adjusted daily or, in the case
of
- 3 -
Wachovia, adjusted to conform to Wachovia's "Monthly LIBOR Index"
as determined by Wachovia from time to time, plus (however
adjusted) the Applicable Margin ("LIBOR Floating Option"), or (y)
Fixed Advance equal to the LIBOR plus the Applicable Margin
("LIBOR Fixed Option"), which shall be quoted for a 30, 90 or 180
day term. The Applicable Margin (the "Applicable Margin") shall
for each fiscal quarter be determined by reference to the Funded
Debt to EBITDA ratio as of the end of the fiscal quarter
immediately preceding the delivery of the applicable Chief
Financial Officer's certificate as follows:
Applicable Margin Per Annum
Ratio Prime Rate LIBOR Rate
----- ---------- ----------
<2.5:1.0 -1.25% +.50%
>=2.5:1.0 and <= 3.0:1.0 -1.00% +.75%
Adjustments, if any, in the Applicable Margin shall be made by
the Lender within three (3) Business Days after receipt by the
Lender of quarterly financial statements for the Borrower and the
Guarantors and the accompanying Chief Financial Officer's
certificate setting forth the Funded Debt to EBITDA ratio of the
Borrower and the Guarantors as of the most recent fiscal quarter
end. Subject to applicability of the Default Rate (as provided in
this Agreement), in the event the Borrower fails to deliver such
financial statements and certificate within the time required by
Section 5.02 hereof, the Applicable Margin shall be the highest
Applicable Margin set forth above until the delivery of such
financial statements and certificate.
(v) in Subsection (f), the words "and to finance working capital
and capital acquisitions" are added at the end of such Subsection,
immediately following the word "purposes".
C. Section 2.02 is amended as follows: (i) the date "June 29, 2002"
is substituted in lieu of the date "June 29, 1999"; (ii) all references
to the "Lender" shall hereafter refer exclusively to NationsBank, which
is the only Lender providing the L/C Facility; and (iii) said Section
shall hereafter reflect a required issuance fee in the amount of 1% per
annum of the amount of each Letter of Credit.
D. Section 2.05 is deleted in its entirety and the following terms
are substituted in lieu thereof:
- 4 -
Unused Line Fee. Borrower shall pay to each Lender quarterly an
unused line fee at a rate equal to one eighth of one (1/8%)
percent per annum calculated by the Lender upon the amount by
which the respective Line amounts exceed the average daily
principal balance outstanding thereunder during the immediately
preceding fiscal quarter (or part thereof) while this Agreement
is in effect and for so long thereafter as any Indebtedness is
outstanding under the applicable Line, which fee shall be payable
on the first day of each fiscal quarter in arrears.
E. Section 2.07 is amended as follows:
(i) Subsection (i)(2) shall hereafter reflect that the
"SunTrust Term Loan" has been assigned to NationsBank.
(ii) a comma, followed by the following provision, are inserted
at the end of Subsection (iii) after the word "Agreement":
as applicable to a Fixed Advance with the Applicable Margin
based upon a Funded Debt to EBITDA ratio of >= 2.5:1.0 and
<=3.0:1.0.
(iii) Subsection (vii) is hereby deleted in its entirety.
F. Article II is amended by adding Section 2.08 thereto as follows:
Section 2.08 Collateral. In order to secure the full and timely
payment and performance of all Indebtedness and obligations of
the Borrower and the Guarantors under and in connection with the
Line and the L/C Facility (including the related guarantee
agreements), as well as any and all renewals, extensions and
modifications thereof, (collectively, the "Secured Obligations")
the Borrower and the Guarantors agree that Lender will be
furnished with a security agreement (the "Security Agreement")
and UCC-1 financing statements (the "Financing Statements") in
favor of, and in form and substance acceptable to, Lender,
granting to Lender a security interest, subject to no other liens
or encumbrances except as may be set forth in the Security
Agreement or this Agreement, in the following, together with the
proceeds and products thereof: (i) all the Borrower's and
Guarantors' presently existing and hereafter created accounts or
accounts receivable; (ii) all the Borrower's and Guarantors'
presently owned and hereafter acquired inventory; (iii) all the
Borrower's and Guarantors' presently owned and hereafter acquired
equipment; (iv) all the Borrower's and Guarantors' presently
owned and hereafter acquired chattel paper, instruments,
documents and general intangibles (as said terms are defined in
Chapter 679 of
- 5 -
the Florida Statutes); and (v) all such additional and related
property as are set forth in the Security Agreement. In addition,
the Borrower and Guarantors each hereby grant to Lender a lien
on, and a security interest in, the deposit balances, accounts,
items, certificates of deposit and monies of the Borrower and the
Guarantors now or at any time hereafter in the possession of or
on deposit with Lender to secure and as collateral for the
payment and performance of the Secured Obligations. Lender may,
as provided in this Agreement, appropriate and set-off against
and apply the same to such Indebtedness when and as due and
payable. All of the above-described collateral is hereinafter
referred to as the "Collateral".
G. Section 5.01 is amended as follows:
(i) Subsection (f) is deleted in its entirety and the following
terms are substituted in place thereof:
(f) Maintenance of Net Worth. Maintain, on a quarterly basis, a
minimum Net Worth, as of September 30, 1998, of $34,000,000.00,
with an annual increase in minimum Net Worth thereafter equal to
fifty percent (50%) of Borrower's Net Income for the fiscal year
ended September 30, 1999 and for each succeeding fiscal year end
during and throughout the entire term of this Agreement.
(ii) in Subsection (j), the number "3.0" is substituted in lieu
of the number "2.50".
H. Subsection 5.03(a) is amended by (x) deleting all clauses thereof
following clause (ii), except for clause (iv) and except that clause
(v) is renumbered as clause (iii), and (y) adding the following clauses
immediately after clause (iv):
(v) Subordinated Debt of the Borrower and the Guarantors, as well
as any Subsidiary thereof, not to exceed One Million Dollars
($1,000,000.00) in the aggregate outstanding at any time, which
is incurred pursuant to unsecured amortizing financing provided
by sellers in connection with acquisitions made by the Borrower
and the Guarantors, or any Subsidiary thereof;
(vi) Existing Indebtedness under that certain first mortgage loan
owing to NationsBank and encumbering real property located at
0000 X.X. 000xx Xxxxxx, Xxxxx, Xxxxxxx;
(vii) Indebtedness of the Borrower and the Guarantors with an
aggregate outstanding principal balance not exceeding Twelve
Million Dollars ($12,000,000) at any time for financing an office
building in Orlando, Florida; and
- 6 -
(viii) Indebtedness of the Borrower and the Guarantors with an
aggregate outstanding principal balance not exceeding One Million
Dollars ($1,000,000) at any time.
6. Each and every reference to the Credit Agreement in the other Loan
Documents shall be deemed to refer to the Credit Agreement, as modified by this
Second Amendment.
7. The obligation of the Lender to hereafter make any Advance(s) to the
Borrower is subject to satisfactory compliance with conditions precedent
requiring that the Lender shall have received from the Obligors, prior to or
simultaneously with the execution of this Second Amendment:
A. Secretaries' certificates, dated as of the date of this Second
Amendment, certifying as to resolutions of the Board of Directors of
the Borrower and each of the Guarantors, authorizing the execution,
delivery and performance of this Second Amendment and the related Loan
Documents, the Borrowings under the Line, as hereby amended, the
Guarantors' respective guarantees thereof, the grants of Collateral
therefor, and the full force and effect of such resolutions on the date
of this Second Amendment;
B. the fully executed original (i) Revolvor Notes; (ii) Security
Agreement; (iii) Financing Statements; and (iv) guarantee agreements,
and/or reaffirmations thereof, from the Guarantors; each in form and
substance acceptable to Lender;
C. current certificates of good standing for each of the Obligors
from the appropriate governmental official(s) of their respective
jurisdictions of incorporation;
D. the Articles of Incorporation of each of the Obligors, duly
certified as current by the Secretary of State of their respective
states of incorporation;
E. the By-Laws of each of the Obligors certified as current and
complete by their respective corporate secretaries;
F. evidence of insurance on the Collateral, including hazard, flood
and liability coverage, in such amounts, upon such terms, and with
companies which are acceptable to Lender: (i) naming Lender as loss
payee as its interests shall appear, and (ii) providing for at least
thirty (30) days prior written notice to Lender of intent to cancel or
modify;
G. the written opinion of counsel for the Obligors, addressed, and
in form and substance acceptable, to Lender and its counsel; and
H. such additional documents, instruments and agreements as are
required hereunder as well as those which the Lender or its counsel may
reasonably request.
8. Each of the Obligors represents and warrants to Lender that, except
as has been otherwise disclosed to Lender in writing, the representations and
warranties contained in the Credit Agreement and all related Loan Documents are
true and correct on and as of the date hereof (with
- 7 -
the same force and effect as if made on and as of the date hereof) and with
respect to this Second Amendment and the related documentation referenced
herein.
9. (a) Each of the Obligors has (i) begun analyzing its operations and
those of its subsidiaries and affiliates that could be adversely affected by
failure to become Year 2000 compliant (that is, that computer applications,
embedded microchips and other systems will be able to perform date-sensitive
functions prior to and after December 31, 1999); and (ii) developed a plan for
becoming Year 2000 compliant in a timely manner, the implementation of which is
on schedule in all material respects. Each of the Obligors reasonably believes
that it will become Year 2000 compliant for its operations and those of its
subsidiaries and affiliates on a timely basis except to the extent that a
failure to do so could not reasonably be expected to have a material adverse
effect upon its financial condition. (b) Each of the Obligors reasonably
believes any suppliers and vendors that are material to its operations or those
of its subsidiaries and affiliates will be Year 2000 compliant for their own
computer applications except to the extent that a failure to do so could not
reasonably be expected to have a material adverse effect upon the financial
condition of any of the Obligors. (c) Each of the Obligors will promptly notify
Lender in the event any of them determines that any computer application which
is material to its operations, its subsidiaries or any of its material vendors
or suppliers will not be fully Year 2000 compliant on a timely basis, except to
the extent that such failure could not reasonably be expected to have a material
adverse effect upon the financial condition of any of the Obligors.
10. Borrower shall pay all out-of-pocket expenses incurred by Lender in
connection with the preparation for and closing of the transaction contemplated
under this Second Amendment, including, without limitation, the fees and
expenses of special counsel for Lender. In addition, Borrower shall pay any and
all taxes (together with interest and penalties, if any, applicable thereto) and
fees, including, without limitation, documentary stamp taxes, now or hereafter
required in connection with the execution and delivery of the Credit Agreement,
as hereby amended, and all related documents, instruments and agreements,
including, without limitation, the promissory notes above-referenced.
11. Except as expressly modified herein, all terms and provisions of
the Credit Agreement, and all other documents, instruments and agreements
executed and/or delivered in connection with the Credit Agreement, shall remain
unchanged and in full force and effect. In the event of any conflict,
inconsistency or incongruity between the terms of the Loan Documents (excluding
those of even date with this Second Amendment) and the terms of this Second
Amendment, the terms of this Second Amendment shall govern and control. No
consent of Lender hereunder shall operate as a waiver or continuing consent with
respect to any instance or event other than those specified herein.
12. Borrower and the Guarantors agree to execute any and all further
documents and instruments that may be required under applicable law or which the
Lender may reasonably request in order to effectuate the transactions
contemplated by this Second Amendment.
13. All covenants, agreements, representations and warranties contained
herein shall be binding upon and inure to the benefit of the parties hereto,
their respective successors and assigns, except that Borrower shall not have the
right to assign its rights hereunder or any interest herein
- 8 -
without the prior written consent of Lender, which consent the Lender may grant
or withhold in its discretion.
14. This Second Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns, and all of which taken together shall
constitute one and the same agreement.
15. This Second Amendment and each of the other Loan Documents shall be
governed by, and construed in accordance with, the laws of the State of Florida
[except as to those matters relating to interest rates or other lending terms
which are or may, at the election of the Lender, be governed by United States
(Federal) law].
16. Any provision of this Second Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforeceability of such
provision in any other jurisdiction.
17. NOTICE OF FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY
REPRESENTS AND AGREES THAT (A) THE WRITTEN CREDIT AGREEMENT (AS HEREBY AMENDED)
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES, (B) THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES, AND (C) THE WRITTEN CREDIT AGREEMENT (AS
HEREBY AMENDED) MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
18. LENDER AND THE OBLIGORS EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
SECOND AMENDMENT OR THE CREDIT AGREEMENT AND ANY AGREEMENT, DOCUMENT OR
INSTRUMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO THIS SECOND
AMENDMENT.
[signatures begin on following page]
- 9 -
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
LENDER:
NATIONSBANK, N.A.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Vice President
WACHOVIA BANK, N.A.
By: /s/ XXXXX XXXXX
---------------------------------------
Xxxxx Xxxxx
Title: Senior Vice President
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Vice President
BORROWER:
POST, XXXXXXX, XXXXX & XXXXXXXX, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Senior Executive Vice President
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
- 10 -
THE PBSJ CORPORATION,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
GUARANTORS:
SEMINOLE DEVELOPMENT CORPORATION,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
POST, XXXXXXX INTERNATIONAL, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
- 11 -
PBS&J CONSTRUCTION SERVICES, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
PBS&J CONSTRUCTORS, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Treasurer
0000 X.X. 000xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
STATE OF NORTH CAROLINA )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxxxx X. Xxxxxxx, as Vice President of NATIONSBANK, N.A., on
behalf of the corporation. He/she is personally known to me or has produced
Drivers License (type of identification) as identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 0-00-00
- 00 -
XXXXX XX XXXXX XXXXXXXX )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxx Xxxxx, as Senior Vice President of WACHOVIA BANK, N.A., on
behalf of the corporation. He is personally known to me or has produced Drivers
License (type of identification) as identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 0-00-00
XXXXX XX XXXXX XXXXXXXX )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxxxx X. Xxxxxxx, as Senior Executive Vice President of Post,
Xxxxxxx, Xxxxx & Xxxxxxxx, Inc., a Florida corporation, on behalf of the
corporation. He is personally known to me or has produced Drivers License (type
of identification) as identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 0-00-00
- 00 -
XXXXX XX XXXXX XXXXXXXX )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxxxx X. Xxxxxxx, as Treasurer of The PBSJ Corporation, a
Florida corporation, on behalf of the corporation. He is personally known to me
or has produced Drivers License (type of identification) as identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 0-00-00
XXXXX XX XXXXX XXXXXXXX )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxxxx X. Xxxxxxx, as Treasurer of Seminole Development
Corporation, a Florida corporation, on behalf of the corporation. He is
personally known to me or has produced Drivers License (type of identification)
as identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 0-00-00
- 00 -
XXXXX XX XXXXX XXXXXXXX )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxxxx X. Xxxxxxx, as Treasurer of Post, Xxxxxxx International,
Inc., a Florida corporation, on behalf of the corporation. He is personally
known to me or has produced Drivers License (type of identification) as
identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 0-00-00
XXXXX XX XXXXX XXXXXXXX )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxxxx X. Xxxxxxx, as Treasurer of PBS&J Construction Services, a
Florida corporation, on behalf of the corporation. He is personally known to me
or has produced Drivers License (type of identification) as identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 0-00-00
- 00 -
XXXXX XX XXXXX XXXXXXXX )
) SS:
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this 2nd day of
July, 1999 by Xxxxxxx X. Xxxxxxx, as Treasurer of PBS&J Constructors Inc., a
Florida corporation, on behalf of the corporation. He is personally known to me
or has produced Drivers License (type of identification) as identification.
/s/ XXXX X. XXXXXXXX
----------------------------------------------------
Notary Public of the State of North Carolina
Print Name: Xxxx X. Xxxxxxxx
Commission No.:
Commission Expires: 6-4-2003
My Commission Expires 6-04-03
- 16 -
