<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 or 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
For the quarterly period ended March 31, 2000
OR
--
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934.
For the transition period from _____________ to _________________
Commission file number 0-24639
RAILWORKS CORPORATION
(Exact name of registrant as specified in its governing instrument)
Delaware 58-2382378
(State of Organization) (IRS Employer Identification No.)
6225 Smith Avenue, Suite 200, Baltimore, Maryland 21209
(Address of principal executive office) (Zip Code)
(Registrant's telephone number, including area code) (410) 580-6000
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
14,355,084 shares of Common Stock were outstanding as of May 5, 2000.
<PAGE> 2
RailWorks Corporation
CONTENTS
<TABLE>
<S> <C>
PART I - FINANCIAL INFORMATION Page
Item 1 - Consolidated Financial Statements:
Consolidated Balance Sheets as of March 31, 2000 1
(unaudited) and December 31, 1999
Consolidated Statements of Operations for the three months ended 2
March 31, 2000 (unaudited) and 1999 (unaudited)
Consolidated Statements of Stockholders' Equity for the three months 3
Ended March 31, 2000 (unaudited) and 1999 (unaudited)
Consolidated Statements of Cash Flows for three months ended 4
March 31, 2000 (unaudited) and 1999 (unaudited)
Notes to Consolidated Financial Statements (unaudited) 5 - 12
Item 2 - Management's Discussion and Analysis of Financial 13 - 16
Condition and Results of Operations
Item 3 - Quantitative and Qualitative Disclosures About Market Risk 16
PART II - OTHER INFORMATION
Items 1 through 6 17 - 18
Signatures 19
EXHIBIT INDEX 20
</TABLE>
ii
<PAGE> 3
RAILWORKS CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
MARCH 31, 2000 AND DECEMBER 31, 1999
(in thousands, except share and per share data)
<TABLE>
<CAPTION>
(Unaudited)
March 31 December 31
ASSETS 2000 1999
----------- -----------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 3,191 $ 4,617
Accounts receivable, net of allowance for doubtful accounts of $360 and $965 137,324 153,084
Costs and estimated earnings in excess of billings on uncompleted contracts 71,873 56,295
Inventories:
Raw materials 18,184 19,197
Finished goods 6,675 4,562
Deferred tax asset 2,426 2,426
Prepaid federal taxes 4,163 4,163
Other current assets 8,784 7,372
-------- --------
Total current assets 252,620 251,716
-------- --------
PROPERTY, PLANT AND EQUIPMENT, NET 75,370 73,897
-------- --------
OTHER ASSETS:
Excess of cost over net assets acquired, net of amortization 232,406 223,886
Loans to officers 6,735 6,735
Other 10,133 15,423
-------- --------
Total other assets 249,274 246,044
-------- --------
TOTAL $577,264 $571,657
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt $ 17,406 $ 19,740
Accounts payable and accrued liabilities 64,048 74,558
Accrued payroll and related withholdings 3,044 3,626
Accrued interest payable 9,792 5,104
Billings in excess of costs and estimated earnings on uncompleted contracts 16,430 20,070
Other current liabilities 8,371 9,348
-------- --------
Total current liabilities 119,091 132,446
-------- --------
LONG-TERM DEBT 293,556 274,691
DEFERRED TAX LIABILITY 8,071 8,071
EXCESS OF ACQUIRED NET ASSETS OVER COST, NET OF AMORTIZATION 8,377 8,434
OTHER LIABILITIES 8,850 12,134
-------- --------
Total long-term liabilities 318,854 303,330
-------- --------
Total liabilities 437,945 435,776
-------- --------
STOCKHOLDERS' EQUITY:
Series A, convertible preferred stock, $1.00 par value, authorized
10,000,000 shares, 13,700 shares issued and outstanding 14 14
Common stock, $0.01 par value, authorized 100,000,000 shares,
14,355,084 shares issued and outstanding at March 31, 2000,
14,255,705 issued and outstanding at December 31, 1999 143 142
Additional paid-in capital 127,902 126,903
Accumulated other comprehensive income 288 175
Retained earnings 10,972 8,647
-------- --------
Total stockholders' equity 139,319 135,881
-------- --------
TOTAL $577,264 $571,657
======== ========
</TABLE>
See Notes to Consolidated Financial Statements.
1
<PAGE> 4
RAILWORKS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED MARCH 31, 2000 AND 1999
(in thousands, except share and per share data) (Unaudited)
<TABLE>
<CAPTION>
2000 1999
------------ ------------
<S> <C> <C>
Revenue $ 125,365 $ 72,673
Cost of revenue 101,337 60,074
------------ ------------
Gross profit 24,028 12,599
Selling, general and administrative expenses 9,377 7,773
Depreciation and amortization expense 2,928 991
------------ ------------
Operating income 11,723 3,835
------------ ------------
Other income (expense):
Interest expense (7,960) (1,613)
Interest and other income 464 400
------------ ------------
Other expense, net (7,496) (1,213)
------------ ------------
Income before income taxes 4,227 2,622
Provision for income taxes 1,902 986
------------ ------------
Net income $ 2,325 $ 1,636
============ ============
Basic earnings per share $ .16 $ .12
============ ============
Diluted earnings per share $ .15 $ .11
============ ============
Weighted average shares used in computing basic
earnings per share 14,352,900 13,775,752
============ ============
Weighted average shares used in computing
diluted earnings per share 15,745,630 15,149,047
============ ============
</TABLE>
See Notes to Consolidated Financial Statements.
2
<PAGE> 5
RAILWORKS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE THREE MONTHS ENDED MARCH 31, 1999
(in thousands) (Unaudited)
<TABLE>
<CAPTION>
ACCUMULATED
COMMON STOCK PREFERRED STOCK ADDITIONAL OTHER RETAINED
PAID-IN COMPREHENSIVE EARNINGS COMPREHENSIVE
SHARES AMOUNT SHARES AMOUNT CAPITAL INCOME (DEFICIT) INCOME
------ ------ ------ ------ -- -------- ------------- -------- --------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 1999 13,704 $137 14 $14 $121,296 $ -- $(11,439) $ --
Issuance of common stock for
Acquisitions 100 1 -- -- 1,013 -- -- --
Net income -- -- -- -- -- -- 1,636 1,636
------ ---- -- --- -------- -------- -------- ------
BALANCE, MARCH 31, 1999 13,804 $138 14 $14 $122,309 $ -- $ (9,803) $1,636
====== ==== == === ======== ======== ======== =======
</TABLE>
RAILWORKS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE THREE MONTHS ENDED MARCH 31, 2000
(in thousands) (Unaudited)
<TABLE>
<CAPTION>
ACCUMULATED
COMMON STOCK PREFERRED STOCK ADDITIONAL OTHER
PAID-IN COMPREHENSIVE RETAINED COMPREHENSIVE
SHARES AMOUNT SHARES AMOUNT CAPITAL INCOME EARNINGS INCOME
------ ------ ------ ------ ----------- ------------- --------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, JANUARY 1, 2000 14,256 $142 14 $14 $126,903 $ 175 $ 8,647 $20,261
Issuance of common stock for
Acquisitions 99 1 -- -- 999 -- -- --
Foreign currency
translation adjustment -- -- -- -- -- 113 -- 113
Net income -- -- -- -- -- -- 2,325 2,325
------ ---- -- --- -------- -------- -------- -------
BALANCE, MARCH 31, 2000 14,355 $143 14 $14 $127,902 $ 288 $ 10,972 $22,699
====== ==== == === ======== ======== ======== =======
</TABLE>
See Notes to Consolidated Financial Statements.
3
<PAGE> 6
RAILWORKS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE MONTHS ENDED MARCH 31, 2000 AND 1999
(in thousands, except share data) (Unaudited)
<TABLE>
<CAPTION>
2000 1999
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 2,325 $ 1,636
Adjustments to reconcile net income to net cash (used in) provided by operating
activities:
Depreciation and amortization 4,843 1,954
Deferred taxes -- (81)
Bond discount amortization 16 --
Gain on sale of equipment (45) (32)
Change in operating assets and liabilities:
Accounts receivable and costs and estimated earnings in excess of billings
on uncompleted contracts (2,648) 10,048
Inventory (620) (164)
Other current assets (1,412) 366
Accounts payable and accrued liabilities 1,350 (9,174)
Accrued interest payable 4,688 --
Accrued payroll and related withholdings (582) 1,157
Billings in excess of costs and estimated earnings on uncompleted contracts (3,640) (2,228)
Other current liabilities (977) (1,813)
Other assets (182) 2,751
Other liabilities (7,813) (2,380)
-------- --------
Net cash (used in) provided by operating activities (4,697) 2,040
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of equipment 5,837 1,416
Purchase of equipment and leasehold improvements (5,446) (1,031)
Acquisitions of subsidiaries, net of cash acquired -- (34,130)
Additional purchase consideration and contingent earn-out payments (12,249) --
-------- --------
Net cash used in investing activities (11,858) (33,745)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net activity on revolving line of credit 25,298 63,519
Proceeds from long-term borrowing 1,034 --
Direct financing costs paid (236) --
Payment of loan origination fees (48) --
Repayment of seller notes (4,845) --
Repayment of long-term borrowing (6,187) (31,587)
-------- --------
Net cash provided by financing activities 15,016 31,932
-------- --------
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (1,539) 227
EXCHANGE RATE EFFECT ON CASH AND CASH EQUIVALENTS 113 --
CASH AND CASH EQUIVALENTS, beginning of period 4,617 2,846
-------- --------
CASH AND CASH EQUIVALENTS, end of period $ 3,191 $ 3,073
======== ========
SUPPLEMENTARY DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for interest $ 2,985 $ 1,350
======== ========
Cash paid during the period for income taxes $ 447 $ 3,363
======== ========
</TABLE>
NON-CASH OPERATING, INVESTING AND FINANCING ACTIVITIES: On January 3,
2000, the Company issued 99,379 shares of common stock as partial consideration
in exchange for 100% of the outstanding stock in the Twigg Corporation
acquisition.
See Notes to Consolidated Financial Statements.
4
<PAGE> 7
RAILWORKS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring adjustments) considered necessary for a fair presentation
have been included in the accompanying unaudited consolidated financial
statements. Operating results for the three months ended March 31, 2000 are not
necessarily indicative of the results that may be expected for the year ending
December 31, 2000.
2. NATURE OF THE BUSINESS
The Company was formed to become a leading nationwide provider of rail
system services, including construction and rehabilitation, repair and
maintenance, and related products. The Company provides contracting services and
rail related products to a broad range of customers including Class I railroads,
transit authorities and commuter railroads, municipalities, industrial companies
and commercial enterprises. RailWorks operates principally in the United States
and Canada.
In accordance with Statement of Financial Accounting Standards ("SFAS") No.
131, the Company has three reportable segments: (1) transit services, (2) rail
track services and (3) rail products and supplies. The transit services segment
provides transit construction and rehabilitation services, as well as
installation of signaling, communications and electrical systems. The rail track
services segment provides design, engineering, construction, rehabilitation and
repair and maintenance of track systems. The rail products and supplies segment
provides a broad range of rail related products, including treated wood ties.
The Company evaluates performance based on profit or loss from operations before
income taxes, interest income and expense, and non-recurring gains and losses.
3. EARNINGS PER SHARE
In accordance with SFAS No. 128, the Company reports its earnings per share
(EPS) in basic and diluted earnings per share. Basic EPS includes no dilution
and is computed by dividing income available to common stockholders by the
weighted-average number of common shares outstanding for the period. Diluted EPS
reflects the potential dilution if certain securities are converted and also
includes certain shares that are contingently issuable. The following is the
computation of earnings per share as of March 31, 2000 and 1999 (in thousands,
except per share data):
<TABLE>
<CAPTION>
2000 1999
------- -------
<S> <C> <C>
Net income $ 2,325 $ 1,636
======= =======
Shares used for determining basic EPS 14,353 13,776
Dilutive effect of:
Stock options 23 3
Convertible preferred shares 1,370 1,370
------- -------
Shares used for determining diluted EPS 15,746 15,149
======= =======
Basic EPS $ .16 $ .12
======= =======
Diluted EPS $ .15 $ .11
======= =======
</TABLE>
5
<PAGE> 8
4. FINANCIAL INFORMATION FOR SUBSIDIARY GUARANTOR AND NON-GUARANTOR
SUBSIDIARIES
The Company conducts a significant portion of its business through its
subsidiaries. All of the Company's domestic subsidiaries (the "Subsidiary
Guarantors") have fully and unconditionally guaranteed the Company's 11.5%
Senior Subordinated Notes (the "Notes"). The Company's non-U.S. subsidiaries
(the "Non-Guarantor Subsidiaries") have not guaranteed the Notes. The Notes are
effectively subordinated in right of payment to all indebtedness and other
liabilities (including trade payables) of the Non-Guarantor Subsidiaries.
Set forth below are condensed consolidating financial statements for the
Company, the Subsidiary Guarantors and the Non-Guarantor Subsidiaries as of
March 31, 2000 and for the three-month period ended March 31, 2000. The Company
has not presented a balance sheet, a statement of operations or a statement of
cash flows for the three-month period ended March 31, 1999 because there were no
Notes outstanding during such period. The equity method of accounting has been
used by the Company to report its investments in subsidiaries. Separate
financial statements for the Subsidiary Guarantors are not presented based on
management's determination that they do not provide additional information that
is material to investors.
RAILWORKS CORPORATION
CONDENSED CONSOLIDATING BALANCE SHEET
MARCH 31, 2000
(In Thousands) (Unaudited)
<TABLE>
<CAPTION>
RAILWORKS
CORPORATION NON-
(PARENT GUARANTOR GUARANTOR
COMPANY ONLY) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
ASSETS:
CURRENT ASSETS:
Cash $ 1,327 $ 888 $ 976 $ -- $ 3,191
Accounts receivable, net -- 137,949 6,046 (6,671)(a) 137,324
Costs and estimated earnings in
excess of billings on uncompleted
contracts -- 71,473 400 -- 71,873
Inventories:
Raw materials -- 14,372 3,812 -- 18,184
Finished goods -- 6,034 641 -- 6,675
Deferred tax asset -- 2,426 -- -- 2,426
Prepaid federal taxes -- 3,913 250 -- 4,163
Due (to)/from parent company 64,626 (61,531) (3,095) -- --
Other current assets 4,044 4,604 136 -- 8,784
-------- --------- -------- --------- --------
Total current assets 69,997 180,128 9,166 (6,671) 252,620
-------- --------- -------- --------- --------
INVESTMENT IN SUBSIDIARIES 352,994 -- -- (352,994)(b) --
-------- --------- -------- --------- --------
PROPERTY, PLANT AND
EQUIPMENT, NET 371 70,717 4,282 -- 75,370
-------- --------- -------- --------- --------
OTHER ASSETS:
Excess of cost over acquired net
assets, net of amortization -- 218,272 14,134 -- 232,406
Loans to officers 6,735 -- -- -- 6,735
Other 6,415 3,571 147 -- 10,133
-------- --------- -------- --------- --------
Total other assets 13,150 221,843 14,281 -- 249,274
-------- --------- -------- --------- --------
TOTAL $436,512 $ 472,688 $ 27,729 $(359,665) $577,264
======== ========= ======== ========= ========
</TABLE>
(a) Elimination of inter-company receivables/payable.
(b) Elimination of investments in subsidiaries.
6
<PAGE> 9
RAILWORKS CORPORATION
CONDENSED CONSOLIDATING BALANCE SHEET
MARCH 31, 2000
(In Thousands) (Unaudited)
<TABLE>
<CAPTION>
RAILWORKS
CORPORATION NON-
(PARENT GUARANTOR GUARANTOR
COMPANY ONLY) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY:
CURRENT LIABILITIES:
Current maturities of long-term debt $ 7,625 $ 8,747 $ 1,034 $ -- $ 17,406
Accounts payable and accrued liabilities 5,543 63,898 1,278 (6,671) (a) 64,048
Accrued payroll and related withholdings 254 2,497 293 -- 3,044
Accrued interest payable 9,791 1 -- -- 9,792
Billings in excess of costs and estimated
Earnings on uncompleted contracts -- 15,954 476 -- 16,430
Other current liabilities 6,702 1,613 56 -- 8,371
--------- -------- ------- ---------- --------
Total current liabilities 29,915 92,710 3,137 (6,671) 119,091
--------- -------- ------- ---------- --------
LONG TERM DEBT 279,552 11,904 2,100 -- 293,556
DEFERRED TAX LIABILITIES -- 8,071 -- -- 8,071
EXCESS OF ACQUIRED NET ASSETS OVER COST, NET OF
AMORTIZATION -- 8,377 -- -- 8,377
OTHER LIABILITIES 4,295 4,228 327 -- 8,850
--------- -------- ------- ---------- --------
Total long-term liabilities 283,847 32,580 2,427 -- 318,854
--------- -------- ------- ---------- --------
Total liabilities 313,762 125,290 5,564 (6,671) 437,945
--------- -------- ------- ---------- --------
STOCKHOLDERS' EQUITY:
Series A, convertible preferred stock 14 -- -- -- 14
Common stock 113 2,119 323 (2,412) (b) 143
Additional paid-in capital 127,902 271,956 18,056 (290,012) (b) 127,902
Accumulated other comprehensive income -- -- 288 -- 288
Retained earnings (deficit) (5,279) 73,323 3,498 (60,570) (b) 10,972
--------- -------- ------- ---------- --------
Total stockholders' equity (deficit) 122,750 347,398 22,165 (352,994) 139,319
--------- -------- ------- ---------- --------
TOTAL $ 436,512 $472,688 $27,729 $ (359,665) $577,264
========= ======== ======= ========== ========
</TABLE>
(a) Elimination of inter-company receivables/payables.
(b) Elimination of investments in subsidiaries.
7
<PAGE> 10
RAILWORKS CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED MARCH 31, 2000
(In Thousands) (Unaudited)
<TABLE>
<CAPTION>
RAILWORKS
CORPORATION NON-
(PARENT CO. GUARANTOR GUARANTOR
ONLY) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
----------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Revenue $ -- $ 126,188 $ 4,474 $ (5,297) (a) $ 125,365
Cost of revenue -- 103,142 3,492 (5,297) (a) 101,337
-------- ---------- ------- -------- ----------
Gross profit -- 23,046 982 -- 24,028
Selling, general and
administrative expenses 844 7,790 743 -- 9,377
Depreciation and amortization
expense 23 2,665 240 -- 2,928
-------- ---------- ------- -------- ----------
Operating income (867) 12,591 (1) -- 11,723
Equity in earnings of subsidiaries 8,434 -- -- (8,434) (b) --
Interest expense (7,301) (605) (54) -- (7,960)
Interest and other income 2 399 63 -- 464
-------- ---------- ------- -------- ----------
Income before income taxes 268 12,385 8 (8,434) 4,227
Provision for income taxes -- 1,792 110 -- 1,902
-------- ---------- ------- -------- ----------
Net income $ 268 $ 10,593 $ (102) $ (8,434) $ 2,325
======== ========== ======= ======== ==========
</TABLE>
(a) Elimination of inter-company revenue.
(b) Elimination of equity in earnings in subsidiaries.
8
<PAGE> 11
RAILWORKS CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE THREE MONTHS ENDED MARCH 31, 2000
(In Thousands) (Unaudited)
<TABLE>
<CAPTION>
RAILWORKS
CORPORATION NON-
(PARENT CO. GUARANTOR GUARANTOR
ONLY) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 268 $ 10,593 $ (102) $ (8,434) (a) $ 2,325
Adjustments to reconcile net income to net cash
(used in) provided by operating activities:
Depreciation and amortization 23 4,376 444 -- 4,843
Bond discount amortization 16 -- -- -- 16
Equity in earnings of subsidiaries (8,434) -- -- 8,434 (a) --
(Gain) loss on sale of equipment -- (77) 32 -- (45)
Changes in operating assets and liabilities:
Accounts receivable and costs and
estimated earnings in excess of billings
on uncompleted contracts 205 (4,934) 2,081 -- (2,648)
Inventory -- (1,051) 431 -- (620)
Other current assets (1,262) (250) 100 -- (1,412)
Accounts payable and accrued liabilities 421 2,773 (1,844) -- 1,350
Accrued interest payable 4,709 (21) -- -- 4,688
Accrued payroll and related withholdings (118) (628) 164 -- (582)
Billings in excess of costs and estimated
earnings on uncompleted contracts -- (3,357) (283) -- (3,640)
Other current liabilities (54) (881) (42) -- (977)
Other assets 18 (119) (81) -- (182)
Other liabilities (630) (7,297) 114 -- (7,813)
Due (to)/from parent company (1,452) 5,439 (3,987) -- --
--------- -------- ------- -------- ---------
Net cash (used in) provided by operating
activities (6,290) 4,566 (2,973) -- (4,697)
--------- -------- ------- -------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of equipment -- 5,748 89 -- 5,837
Purchase of equipment and leasehold improvements (215) (4,597) (634) -- (5,446)
Additional purchase consideration and contingent
earn-out payments (12,249) -- -- -- (12,249)
--------- -------- ------- -------- ---------
Net cash (used in) investing activities (12,464) 1,151 (545) -- (11,858)
--------- -------- ------- -------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net activity on revolving line of credit 25,298 -- -- -- 25,298
Proceeds from long-term borrowing -- -- 1,034 -- 1,034
Direct financing costs paid (236) -- -- -- (236)
Payment of loan origination fees (48) -- -- -- (48)
Repayment of seller notes (4,845) -- -- -- (4,845)
Repayment of long-term borrowing (75) (6,112) -- -- (6,187)
--------- -------- ------- -------- ---------
Net cash provided by (used in)
Financing activities 20,094 (6,112) 1,034 -- 15,016
--------- -------- ------- -------- ---------
NET (DECREASE)INCREASE IN CASH 1,340 (395) (2,484) -- (1,539)
EXCHANGE RATE EFFECT ON CASH -- -- 113 -- 113
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR (13) 1,283 3,347 -- 4,617
--------- -------- ------- -------- ---------
CASH AND CASH EQUIVALENTS, END OF YEAR $ 1,327 $ 888 $ 976 $ -- $ 3,191
========= ======== ======= ======== =========
</TABLE>
(a) Elimination of equity in earnings of subsidiary.
9
<PAGE> 12
5. CAPITAL STOCK AND STOCK INCENTIVE PLAN
The Stock Incentive Plan reserves for issuance 2,000,000 shares of common
stock of the Company. In general, the terms of the option awards (including
vesting schedules) will be established by the Compensation Committee of the
Company's board of directors.
During the first quarter of 2000 options covering an aggregate of 200,000
shares of common stock were issued under the Plan. Various key management
employees were issued options on shares of common stock with an exercise price
equal to the price of the common stock on the dates of each of the respective
grants. In all cases, the options expire ten years after the date of grant.
On January 3, 2000, the company issued 99,379 shares of common stock as
partial consideration in exchange for 100% of the outstanding stock in the Twigg
Corporation acquisition.
6. ACQUISITIONS
Assets acquired and liabilities assumed are recorded at their estimated fair
values at the time of acquisition. The excess of the purchase price over the net
fair value is allocated to goodwill. The estimated fair values of acquired
assets and liabilities are subject to adjustment pending finalization of, among
other things, certain fixed asset appraisals, the quantification of contract
and/or litigation uncertainties based on information which was not available at
the time of acquisition but subsequently obtained. Goodwill is adjusted as these
items are resolved as well as when, and if, additional contingent purchase price
is paid. The Company evaluates periodically whether events and circumstances
indicate that any goodwill is impaired. At March 31, 2000, the Company had
completed its allocation of purchase price for all of the companies acquired
during the first quarter of 1999, as well as finalizing its 1999 earn-out
commitments. As a result of these items, approximately $10.1 million of
additional goodwill was recorded as of March 31, 2000, primarily relating to the
final quantification of contract and litigation uncertainties.
On April 17, 2000, the Company acquired all of the stock of Breaking
Technology and Equipment, Inc. and Breaking Technology Corporation (collectively
"Breaking Tech"), which specializes in demolition services to the rail transit
industry in the metropolitan New York City area. The acquisition will be
accounted for using the purchase method of accounting. Accordingly, the purchase
price will be allocated to the assets acquired and the liabilities assumed based
upon the fair values at the date of acquisition. The purchase price will be
$1,731,551 in cash, plus the potential to receive earn-out payments over a
3-year period if targeted revenue and profit goals are achieved. The estimated
fair market value of assets purchased will be approximately $881,000 and the
estimated goodwill recorded will be $851,000. The estimated fair market values
reflected above are based on preliminary estimates and assumptions and are
subject to revision.
7. SEGMENT REPORTING
The following table presents certain financial data as of and for the
three months ended March 31, 2000 by reportable segment (in thousands):
<TABLE>
<CAPTION>
TRANSIT RAIL PRODUCTS RAIL OTHER/
SERVICES AND SUPPLIES TRACK CORPORATE TOTAL
-------- ------------ ----- --------- -----
<S> <C> <C> <C> <C> <C>
Total revenues for reportable segments $ 63,773 $ 15,711 $ 51,178 $ -- $ 130,662
Inter-segmental revenue 3,432 1,037 828 -- 5,297
Depreciation/amortization 182 902 2,355 1,404 4,843
Segment operating profit (loss) 5,119 2,672 4,799 (867) 11,723
Costs and estimated earnings in excess of
billings on uncompleted contracts 59,839 -- 12,034 -- 71,873
Segment assets 134,960 49,169 90,878 452,082 727,089
</TABLE>
10
<PAGE> 13
The Company's reconciliation of segment totals to enterprise values is as
follows (in thousands):
<TABLE>
<S> <C>
REVENUES:
Total revenues for reportable segments $ 130,662
Elimination of inter-segment revenues (5,297)
----------
Consolidated revenues $ 125,365
==========
OPERATING PROFIT OR LOSS:
Total profit for reportable segments $ 11,723
==========
ASSETS:
Total assets for reportable segments $ 727,089
Elimination of inter-company receivables/payables (6,671)
Elimination of investments in subsidiaries (143,154)
----------
Consolidated assets $ 577,264
==========
</TABLE>
The Company's Canadian operations produced revenues for the three month
period ended March 31, 2000 of $5,270,175. The net book value of long-lived
assets relating to the Canadian operations amounted to $5,092,149 as of March
31, 2000.
The following table presents certain financial data as of and for the
three months ended March 31, 1999 by reportable segment (in thousands):
<TABLE>
<CAPTION>
TRANSIT RAIL PRODUCTS RAIL OTHER/
SERVICES AND SUPPLIES TRACK CORPORATE TOTAL
-------- ------------- ----- --------- -----
<S> <C> <C> <C> <C> <C>
Total revenues for reportable segments $ 48,758 $ 8,241 $ 16,326 $ -- $ 73,325
Inter-segmental revenue -- 334 318 -- 652
Depreciation/amortization 32 429 565 928 1,954
Segment operating profit (loss) 1,806 1,508 1,187 (666) 3,835
Costs and estimated earnings in excess of
billings on uncompleted contracts 28,673 -- 2,655 -- 31,328
Segment assets 75,554 27,916 27,097 210,249 340,816
</TABLE>
The Company's reconciliation of segment totals to enterprise values is as
follows (in thousands):
<TABLE>
<S> <C>
REVENUES:
Total revenues for reportable segments $ 73,325
Elimination of inter-segment revenues (652)
----------
Consolidated revenues $ 72,673
==========
OPERATING PROFIT OR LOSS:
Total profit or loss for reportable segments $ 3,835
==========
ASSETS:
Total assets for reportable segments $ 340,816
Elimination of inter-company receivables/payables (551)
Elimination of investments in subsidiaries (34,518)
----------
Consolidated assets $ 305,747
==========
</TABLE>
The Company's Canadian operations produced revenues for the three month
period ended March 31, 1999 of $2,275,639. The net book value of long-lived
assets relating to the Canadian operations amounted to $822,556 as of March 31,
1999.
11
<PAGE> 14
8. SUBSEQUENT EVENT
AMENDED CREDIT FACILITIES
On April 28, 2000, the Company amended and restated its revolving credit and
term loan facilities (the "Credit Facilities") to consist of a $100 million
amortizing term loan and a $150 million revolving credit facility. The term loan
facility matures on September 30, 2006 and the revolving credit facility matures
on November 5, 2004. These Credit Facilities were provided by a group of nine
banks and seven financial institutions under a secured financing agreement.
Borrowings under the Credit Facilities will bear interest on a floating basis at
rates equal to LIBOR or the Prime Rate, plus a specified margin. Borrowings
outstanding under these Credit Facilities aggregated $130.0 million at April 28,
2000 and were used to repay existing debt. Future borrowings will be used for
general corporate purposes, including working capital and to fund additional
acquisitions. Borrowing availability under the revolving credit facility is
subject to compliance with certain financial covenants and borrowing base
limitations.
12
<PAGE> 15
Item 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
GENERAL
We were formed in March 1998 to become a leading nationwide provider of rail
system services, including construction and rehabilitation, repair and
maintenance, and related products. We primarily perform services pursuant to
contracts for the completion of specific projects, some of which take up to five
years to complete. On most projects, we contract directly with rail system
operators, while on other projects we act as a subcontractor.
In August 1998, we acquired in separate concurrent transactions fourteen
companies (the "Founding Companies") engaged principally in the rail system
services and products business and we consummated our initial public offering
("IPO") of Common Stock. In November 1998, we acquired two companies (the "1998
Acquired Companies") and, in 1999, we acquired fourteen companies or groups of
companies (the "1999 Acquired Companies"). Except for the acquisition of
Comstock Holdings, Inc. ("Comstock"), a Founding Company, all of our
acquisitions have been accounted for as purchases in accordance with APB No. 16.
Comstock has been identified as the accounting acquirer for accounting and
financial statement purposes consistent with Staff Accounting Bulletin No. 97 of
the SEC because its owners received the largest portion, 34.6%, of the shares of
Common Stock issued to the owners of the Founding Companies at the time of their
acquisition.
Our consolidated balance sheet as of March 31, 2000 includes all companies that
we acquired as of March 31, 2000. Our statement of operations and statement of
cash flows for the three months ended March 31, 2000 include the results of
operations and cash flows of all companies acquired as of December 31, 1999.
There were no acquisitions during the three months ended March 31, 2000. Our
consolidated balance sheet as of December 31, 1999 includes all companies that
we acquired through December 31, 1999. Our statement of operations and statement
of cash flows for the three months ended March 31, 1999 include the results of
operations and cash flows of all companies acquired as of December 31, 1998 and
the results of operations and cash flows of the applicable 1999 Acquired
Companies from each of their respective dates of acquisition during the quarter.
RESULTS OF OPERATIONS
Three Months Ended March 31, 2000 Compared to the Three Months Ended March 31,
1999.
Revenue. Revenue increased $52.7 million, or 72.5%, from $72.7 million for the
three months ended March 31, 1999 to $125.4 million for the three months ended
March 31, 2000. The increase in revenue for the three months ended March 31,
2000 was due primarily to the addition of revenue from ten 1999 Acquired
Companies that were acquired subsequent to March 31, 1999. Revenue for the three
months ended March 31, 1999 included all of the Founding Companies, the 1998
Acquired Companies and four of the 1999 Acquired Companies from the date of
their acquisition during the quarter (the "1999 Base Companies").
Transit services revenue increased $11.5 million, or 23.6%, from $48.8 million
for the three months ended March 31, 1999 to $60.3 million for the three months
ended March 31, 2000. The increase in revenue for the three months ended March
31, 2000 was due primarily to the addition of revenue from two 1999 Acquired
Companies that were acquired subsequent to March 31, 1999. Revenue for the three
months ended March 31, 1999 included two of the Founding Companies, one of the
1998 Acquired Companies and one of the 1999 Acquired Companies from the date of
its acquisition during the quarter (the "Transit Segment 1999 Base Companies").
Rail products and supplies revenue increased $6.8 million, or 86.1%, from $7.9
million for the three months ended March 31, 1999 to $14.7 million for the three
months ended March 31, 2000. The increase in revenue for the three months ended
March 31, 2000 was due primarily to the addition of revenue from three 1999
Acquired Companies that were acquired subsequent to March 31, 1999. Revenues for
the three months ended March 31, 1999 included three of the Founding Companies
and two of the 1999 Acquired Companies from the date of their acquisition during
the quarter (the "Rail Products Segment 1999 Base Companies").
Rail track services revenue increased $34.4 million, or 215.0%, from $16.0
million for the three months ended March 31, 1999 to $50.4 million for the three
months ended March 31, 2000. The increase in revenue for the three months ended
March 31, 2000 was due primarily to the addition of revenue from five 1999
Acquired Companies that were acquired subsequent to March 31, 1999. Revenues for
the three months ended March 31, 1999 included nine of the Founding Companies,
one of the 1998 Acquired Companies and one of the 1999 Acquired Companies from
the date of its acquisition during the quarter (the "Rail Track Segment 1999
Base Companies").
13
<PAGE> 16
Gross Profit. Gross profit increased $11.4 million, or 90.5%, from $12.6 million
for the three months ended March 31, 1999 to $24.0 million for the three months
ended March 31, 2000. The increase in gross profit for the three months ended
March 31, 2000 was due primarily to the addition of gross profit from ten 1999
Acquired Companies that were acquired subsequent to March 31, 1999. Gross profit
reported for the three months ended March 31, 1999 included gross profit only
from the 1999 Base Companies. The gross profit percentage increased from 17.3%
for the three months ended March 31, 1999 to 19.2% for the three months ended
March 31, 2000. This increase was the result of higher profitability associated
with the mix and type of work performed by the 1999 Acquired Companies during
the three months ended March 31, 2000 compared to mix and type of work performed
by the 1999 Base Companies for the three months ended March 31, 1999.
Transit services gross profit increased $3.1 million, or 48.4%, from $6.4
million for the three months ended March 31, 1999 to $9.5 million for the three
months ended March 31, 2000. The increase in gross profit for the three months
ended March 31, 2000 was due primarily to the addition of revenue from two 1999
Acquired Companies that were acquired subsequent to March 31, 1999. Gross profit
reported for the three months ended March 31, 1999 included only gross profit
from the Transit Segment 1999 Base Companies during the quarter. The gross
profit percentage increased from 13.1% for the three months ended March 31, 1999
to 15.8% for the three months ended March 31, 2000. This increase was the result
of higher profitability associated with the mix and type of work performed
during the first quarter of 2000 compared to the mix and type of work performed
by the Transit Segment 1999 Base Companies during the first quarter of 1999.
Rail products and supplies gross profit increased $2.8 million, or 100.0%, from
$2.8 million for the three months ended March 31, 1999 to $5.6 million for the
three months ended March 31, 2000. The increase in gross profit for the three
months ended March 31, 2000 was due primarily to the addition of revenue from
three 1999 Acquired Companies that were acquired subsequent to March 31, 1999.
Gross profit for the three months ended March 31, 1999 included only gross
profit from the Rail Products Segment 1999 Base Companies during the quarter.
The gross profit percentage increased from 35.4% for the three months ended
March 31, 1999 to 38.1% for the three months ended March 31, 2000. This increase
was the result of higher profitability associated with the mix and type of work
performed during the first quarter of 2000 compared to the mix and type of work
performed by the Rail Products Segment 1999 Base Companies during the first
quarter of 1999.
Rail track services gross profit increased $5.5 million, or 161.8%, from $3.4
million for the three months ended March 31, 1999 to $8.9 million for the three
months ended March 31, 2000. The increase in gross profit for the three months
ended March 31, 2000 was due primarily to the addition of revenue from five 1999
Acquired Companies that were acquired subsequent to March 31, 1999. Gross profit
for the three months ended March 31, 1999 included only gross profit from the
Rail Track Segment 1999 Base Companies during the quarter. The gross profit
percentage decreased from 21.3% for the three months ended March 31, 1999 to
17.7% for the three months ended March 31, 2000. This decrease was the result of
lower profitability associated with the mix and type of work performed during
the first quarter of 2000 compared to the mix and type of work performed by the
Rail Track Segment 1999 Base Companies during the first quarter of 1999.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $3.5 million, or 39.8%, from $8.8 million for
the three months ended March 31, 1999 to $12.3 million for the three months
ended March 31, 2000. The increase in selling, general and administrative
expenses for the three months ended March 31, 2000 was due primarily to the
addition of selling, general and administrative expenses from ten 1999 Acquired
Companies that were acquired subsequent to March 31, 1999. Selling, general and
administrative expenses for the three months ended March 31, 1999 included only
selling, general and administrative expenses from the 1999 Base Companies during
the quarter. As a percentage of revenue, selling, general and administrative
expenses decreased from 12.1% for the three months ended March 31, 1999 to 9.8%
for the three months ended March 31, 2000. This decrease in percentage was the
result of the addition of the lower selling, general and administrative cost
structures of the 1999 Acquired Companies that were acquired after March 31,
1999 to the selling, general and administrative cost structures of the 1999 Base
Companies.
Transit services selling, general and administrative expenses increased
$400,000, or 11.1%, from $3.6 million for the three months ended March 31, 1999
to $4.0 million for the three months ended March 31, 2000. The increase in
selling, general and administrative expenses for the three months ended March
31, 2000 was due primarily to the addition of revenue from two 1999 Acquired
Companies that were acquired subsequent to March 31, 1999. Transit Services
selling, general and administrative expenses for the three months ended March
31, 1999 included only selling, general and administrative expenses from the
Transit Services Segment 1999 Base Companies during the quarter. As a percentage
of segment revenue, selling, general and administrative expenses decreased from
7.4% for the three months ended March 31, 1999 to 6.6% for the three months
ended March 31, 2000. This percentage decrease
14
<PAGE> 17
was a result of the transit services related 1999 Acquired Companies having
lower overhead selling, general and administrative cost structures than the
Transit Services Segment 1999 Base Companies.
Rail products and supplies selling, general and administrative expenses
increased $1.3 million, or 100.0%, from $1.3 million for the three months ended
March 31, 1999 to $2.6 million for the three months ended March 31, 2000. The
increase in selling, general and administrative expenses for the three months
ended March 31, 2000 was due primarily to the addition of revenue from three
1999 Acquired Companies that were acquired subsequent to March 31, 1999.
Selling, general and administrative expenses for the three months ended March
31, 1999 included only selling, general and administrative expenses from the
Rail Products Segment 1999 Base Companies during the quarter. As a percentage of
segment revenue, selling, general and administrative expenses increased from
16.5% for the three months ended March 31, 1999 to 17.7% for the three months
ended March 31, 2000. This percentage increase was a result of the rail products
related 1999 Acquired Companies having higher overhead selling, general and
administrative cost structures than the Rail Products Segment 1999 Base
Companies.
Rail track services selling, general and administrative expenses increased $1.1
million, or 52.4%, from $2.1 million for the three months ended March 31, 1999
to $3.2 million for the three months ended March 31, 2000. The increase in
selling, general and administrative expenses for the three months ended March
31, 2000 was due primarily to the addition of revenue from five 1999 Acquired
Companies that were acquired subsequent to March 31, 1999. Selling, general and
administrative expenses for the three months ended March 31, 1999 included only
selling, general and administrative expenses from the Rail Track Segment 1999
Base Companies during the quarter. As a percentage of segment revenue, selling,
general and administrative expenses decreased from 13.1% for the three months
ended March 31, 1999 to 6.3% for the three months ended March 31, 2000. This
percentage decrease was a result of the rail track services 1999 Acquired
Companies having lower overhead, selling, general and administrative cost
structures than the Rail Track Segment 1999 Base Companies.
Corporate selling, general and administrative expenses increased $700,000, or
38.9%, from $1.8 million for the three months ended March 31, 1999 to $2.5
million for the three months ended March 31, 2000. The increase was due to the
fact that the selling, general and administrative expenses for the three months
ended March 31, 1999 is that of an overhead structure to support the fourteen
Founding Companies and four of the 1999 Acquired Companies. The selling, general
and administrative expenses for the three months ended March 31, 2000 is that of
an overhead structure to support the Founding Companies, as well as, the 1998
Acquired Companies and all fourteen 1999 Acquired Companies. As a percentage of
total revenue, selling, general and administrative expenses decreased from 2.5%
for the three months ended March 31, 1999 to 2.0% for the three months ended
March 31, 2000. The decrease in percentage results from spreading the corporate
overhead structure over a larger revenue base.
Net Income. Net income increased $700,000 or 43.8%, from $1.6 million for the
three months ended March 31, 1999 to $2.3 million for the three months ended
March 31, 2000, as a result of the items mentioned above.
FLUCTUATIONS IN QUARTERLY OPERATING RESULTS
In the past we have experienced quarterly variations in revenue, operating
income (including operating losses), net income (including net losses) and cash
flows (including operating cash flow deficits) as a result of various factors,
including projects commenced and completed during a quarter, the number of
business days in a quarter and the size and scope of projects. A variation in
the number of projects, progress on projects or the timing of the initiation or
completion of projects can cause periods in which certain operating resources
are not generating revenue and can cause significant variations in operating
results between reporting periods. Negative fluctuations have been particularly
pronounced, and net losses have been incurred, in the first and fourth calendar
quarters, generally due to adverse weather conditions. We expect to continue to
experience such quarterly fluctuations in operating results, including possible
net losses.
LIQUIDITY AND CAPITAL RESOURCES
At March 31, 2000, we had working capital of approximately $133.5 million.
Net cash used in operating activities for the three months ended March 31, 2000
was approximately $4.7 million. Net cash used in investing activities for the
three months ended March 31, 2000 was approximately $11.9 million, which
consisted primarily of cash payments in satisfaction of earn-out obligations.
Net cash provided by financing activities for the three months ended March 31,
2000 was approximately $15.0 million, which included borrowings of approximately
$26.3 million, offset by debt repayment of approximately $11.0 million.
Capital expenditures were $5.4 million and $1.0 million for the three
months ended March 31, 2000 and 1999, respectively. Historically, capital
expenditures have been, and future expenditures are anticipated to be, primarily
to support expansion of our
15
<PAGE> 18
operations, including our management information systems. Our capital
expenditures over the next several years, as a percentage of revenue, are
expected to decrease compared to those of the past three fiscal years.
Cash for acquisitions and working capital are financed by funds generated
from operations together with borrowings under our credit facilities. As of
March 31, 2000, we had a $105 million senior revolving credit facility that was
to mature in August 2002. We also had a $30 million senior term credit facility
that was to mature in November 2004. On April 28, 2000, the Company amended and
restated these facilities. We now have a $100 million amortizing term loan that
matures on September 30, 2006 and a $150 million revolving credit facility that
matures on November 5, 2004. See Note 8. The credit facilities are secured by a
first lien on all of the capital stock of our subsidiaries and on all of our
accounts receivable of our domestic subsidiaries. The credit facilities contain
a negative pledge on all of our domestic subsidiaries' assets as well as other
usual and customary covenants and events of default for transactions of the type
contemplated by the credit facilities. Borrowings under the credit facilities
bear interest, at our option, at an interest rate equal to (1) LIBOR plus the
applicable margin for LIBOR loans, which ranges from 125 basis points to 250
basis points based on the ratio of Funded Debt to EBITDA (as such terms are
defined in the credit facility) or (2) the Alternate Base Rate (defined as the
higher of (a) the Bank of America prime rate and (b) the Federal Funds rate plus
50 basis points) plus up to 125 basis points based on the ratio of Funded Debt
to EBITDA. We may also finance future acquisitions with shares of common stock
and other contingent consideration.
In connection with certain acquisitions, we have agreed, and in the future
may agree, to pay additional consideration based on operating results of the
acquired entity. The payment of any such contingent consideration could result
in an increase in the purchase prices of such acquisitions and, as a result,
additional goodwill. Additional consideration recorded as goodwill at December
31, 1999 relating to 1999 operating performance amounted to approximately
$11,000,000. Such amounts were paid on or about March 31, 2000.
We believe that funds generated from operations, together with existing
cash and borrowings under our revolving credit facility, will be sufficient to
finance our current operations, planned capital expenditures, potential
acquisitions and internal growth. If we were to make a significant acquisition
for cash, it may be necessary to obtain additional debt or equity financing.
There can be no assurance that we will be able to obtain any such financing on
terms satisfactory to us, if at all.
YEAR 2000
We have not experienced any disruptions to our business or any other problems as
a result of Year 2000 issues. We developed and implemented a plan that addressed
three main areas: information systems, embedded chips and supply chain readiness
(including customers as well as inventory and non-inventory suppliers). To
oversee the process, we established a committee comprised of accounting and
information systems personnel who reported regularly to the board of directors
and the audit committee.
We believe that, by identifying potential deficiencies related to Year 2000 in
our information systems and other equipment with date sensitive operating
controls, by identifying and contacting suppliers and customers to determine the
state of their Year 2000 readiness, and by addressing them through upgrades and
other remediation, we have successfully avoided material Year 2000 problems.
Item 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are subject to market risk associated principally with changes in interest
rates. As of March 31, 2000, interest rate exposure has been principally limited
to the $72.5 million of long-term debt outstanding at March 31, 2000 under our
credit facilities. All of that debt bears interest at rates that float with the
market. A 50 basis point movement in the interest rate on our floating rate debt
would have resulted in an approximately $363,000 annualized increase or decrease
in interest expense and cash flows. We will from time to time enter into
interest rate swaps on our debt, when we believe there is a clear financial
advantage for doing so. We do not use derivative financial or commodity
instruments for trading purposes and the use of such instruments is subject to
strict approval levels by senior officers. Typically, the use of such derivative
instruments is limited to interest rate swaps on our outstanding long-term debt.
Our exposure related to such derivative instruments is, in the aggregate, not
material to our financial position, results of operations and cash flows. There
were no swap agreements in effect as of March 31, 2000.
CAUTIONARY STATEMENTS
This quarterly report contains forward-looking statements within the meaning of
the Securities Act of 1933 and the Securities Exchange Act of 1934. You can find
discussions containing forward-looking statements in the section entitled
"Management's
16
<PAGE> 19
Discussion and Analysis of Financial Condition and Results of Operations" as
well as elsewhere herein. We use the words "believes," "anticipates," "expects",
"estimates," "plans," "intends" and similar expressions so as to identify
forward-looking statements. All forward-looking statements involve substantial
risks and uncertainties. There may be events in the future that we are not
accurately able to predict, or over which we have no control. Some factors that
may cause actual results to differ from projected results are:
- the absence of a combined operating history of our operating
companies and difficulties in integrating their operations;
- unanticipated difficulties or delays in implementing our
acquisition program;
- cyclicality in the demand for rail systems services and
products;
- availability of capital, including our ability to service or
refinance indebtedness;
- the unanticipated decrease in public sector contracts and
funding;
- changes in our relationships with major customers;
- effects of changes in general economic conditions; - actions
by competitors;
- ability to retain qualified personnel;
- the resolution of former West Coast operations' contract
claims or litigation uncertainties.
Consequently, you should regard forward-looking statements only as our current
plans, estimates and beliefs. We do not promise to notify you if we learn that
our assumptions or projections are wrong for any reason. Additional information
concerning the risk and uncertainties listed above, and other factors that you
may wish to consider, are contained in our filings with the Securities and
Exchange Commission, including our Annual Report of Form 10-K. Copies of these
filings are available from us free of charge.
PART II: OTHER INFORMATION
Item 1. Legal Proceedings
None.
Item 2. Changes in Securities and Use of Proceeds
(i) Changes in Securities
None.
(ii) Use of Proceeds
None.
(iii) Recent Sales of Unregistered Securities
During the three months ended March 31, 2000, we issued 99,379
shares of unregistered Common Stock of the Company to the
owners of Twigg Corporation, as partial consideration for 100%
of the outstanding stock of Twigg Corporation in that
acquisition. The stock was issued in reliance on an exemption
from registration under Section 4(2) of the Securities Act of
1933.
During the three months ended March 31, 2000, we also issued
to four employees of RailWorks options to purchase a combined
total of 200,000 shares of the Company's common stock. The
exercise price of the options was the market price of the
stock on the date of grant. The options expire ten years after
the date of grant.
Item 3. Default Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
17
<PAGE> 20
Item 5. Other Information
None.
Item 6. Exhibits and Reports on Form 8-K
a) Exhibit List:
10.41 -- Amendment No. 4 to the Amended and Restated Credit
Agreement dated March 30, 2000 among RailWorks
Corporation, as Borrower, Certain Subsidiaries, as
Guarantors, the Lenders named therein, Bank of
America, N. A., as Domestic Administrative Agent and
Bank of America, N. A., as Canadian Administrative
Agent.
10.42 -- Amended and Restated Credit Agreement dated April
28, 2000 among RailWorks Corporation, as Borrower,
Certain Subsidiaries, as Guarantors, the Lenders
named therein, First Union National Bank, as
Documentation Agent, and Bank of America, N. A., as
Administrative Agent.
10.43 -- Amended and Restated Security Agreement dated
April 28, 2000 among the persons identified therein
as Grantors and Bank of America, N. A., as Collateral
Agent for the Lenders.
10.44 -- Amended and Restated Pledge Agreement dated April
28, 2000 among the persons identified therein as
Pledgors and Bank of America, N. A., as Collateral
Agent for the Lenders.
10.45 -- Amended and Restated Employment Agreement, dated
January 1, 2000 between RailWorks Corporation and
Michael R. Azarela.
10.46 -- Amended and restated Employment Agreement, dated
January 1, 2000 between RailWorks Corporation and
John Larkin.
27.1 -- Financial Data Schedule (for SEC filing purposes only)
b) Reports on Form 8-K:
None.
18
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
RailWorks Corporation
/s/ Michael R. Azarela
----------------------------------
By: Michael R. Azarela
Executive Vice President and
Chief Financial Officer
Date: May 12, 2000
19
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
- ------ ------- -------------
<S> <C> <C>
10.41 -- Amendment No. 4 to the Amended and Restated Credit Agreement 21- 30
dated March 30, 2000 among RailWorks Corporation, as Borrower,
Certain Subsidiaries, as Guarantors, the Lenders named therein, Bank
of America, N. A., as Domestic Administrative Agent and Bank of
America, N. A., as Canadian Administrative Agent.
10.42 -- Amended and Restated Credit Agreement dated April 28, 2000 among 31 - 109
RailWorks Corporation, as Borrower, Certain Subsidiaries, as
Guarantors, the Lenders named therein, First Union National Bank, as
Documentation Agent, and Bank of America, N. A., as Administrative Agent.
10.43 -- Amended and Restated Security Agreement dated April 28, 2000 among 110 - 124
the persons identified therein as Grantors and Bank of America, N. A., as
Collateral Agent for the Lenders.
10.44 -- Amended and Restated Pledge Agreement dated April 28, 2000 among 125 - 132
the persons identified therein as Pledgors and Bank of America, N. A.,
as Collateral Agent for the Lenders.
10.45 -- Amended and Restated Employment Agreement, dated January 1, 2000 133 - 145
between RailWorks Corporation and Michael R. Azarela.
10.46 -- Amended and restated Employment Agreement, dated January 1, 2000 146 - 156
between RailWorks Corporation and John Larkin.
27.1 -- Financial Data Schedule (for SEC filing purposes only) 157
</TABLE>
20
<PAGE> 1
EXHIBIT 10.41
AMENDMENT NO. 4
THIS AMENDMENT NO. 4 (this "Amendment") dated as of March 30, 2000, to
the Credit Agreement referenced below, is by and among RailWorks Corporation, a
Delaware corporation (the "Domestic Borrower"), the Subsidiaries of the Borrower
identified herein, the Lenders identified herein, and Bank of America, N.A., as
Domestic Administrative Agent. Terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit Agreement.
WITNESSETH
WHEREAS, a $105 million credit facility has been extended to the
Domestic Borrower and certain of its Subsidiaries pursuant to the terms of that
Amended and Restated Credit Agreement dated as of August 5, 1999 (as amended and
modified, the "Credit Agreement") among the Domestic Borrower, certain of its
Subsidiaries identified therein, the lenders identified therein, First Union
National Bank, as Documentation Agent, Bank of America Canada, as Canadian
Administrative Agent, and Bank of America, N.A., as Domestic Administrative
Agent;
WHEREAS, the Domestic Borrower has requested certain modifications to
the Credit Agreement;
WHEREAS, the Required Lenders have agreed to the requested
modifications on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Credit Agreement is amended in the following respects:
1.1 The definition of "Consolidated EBITDA" in the Credit
Agreement is hereby amended to read as follows:
"Consolidated EBITDA" means, for any period for the
Consolidated Group, the sum of Consolidated Net Income plus
Consolidated Interest Expense plus all provisions for any
federal, state or other domestic and foreign income taxes plus
depreciation and amortization, in each case on a consolidated
basis determined in accordance with GAAP applied on a
consistent basis, but excluding for purposes hereof
extraordinary gains and losses and related tax effects
thereon.
1.2 The definition of "Consolidated Fixed Charges" in the Credit
Agreement is hereby amended to read as follows:
"Consolidated Fixed Charges" means, for any period for the
Consolidated Group, the sum of the cash portion of
Consolidated Interest Expenses plus Restricted Payments plus
scheduled current maturities of Funded Debt (other that the
Obligations) plus fifteen percent (15%) of the Obligations
outstanding on the date of determination, in each case on a
consolidated basis determine in accordance with GAAP applied
on a consolidated basis. Except as otherwise expressly
provided, the applicable period shall be for the four
consecutive fiscal quarters ending as of the date of
determination.
1.3 Clauses (c) and (d) in Section 8.4 of the Credit Agreement are
renumbered as clauses (d) and (e) thereof, respectively, and a new
clause (c) is added thereto to read as follows:
(c) the maximum amount of earn-out payments paid in any fiscal
year in connection with Acquisitions shall not exceed
$15,000,000 in the aggregate;
21
<PAGE> 2
2. The Required Lenders hereby consent to the incurrence by the
Domestic Borrower, and the guaranty thereof by the Domestic Subsidiaries, of up
to $100,000,000 of Funded Debt under a term loan credit facility, provided that
(a) the terms and conditions of the term loan credit facility are substantially
similar to the terms and conditions set forth in the Summary of Terms attached
hereto as Schedule A and (b) the proceeds of the term loan credit facility shall
be used to repay the outstanding loans under the Credit Agreement and the
existing $30 million term loan credit facility. In addition, the Required
Lenders hereby consent and agree that the term loan credit facility may be
secured by Liens on the Property of the Domestic Borrower and the Domestic
Subsidiaries provided that (a) such Liens secure the obligations under the term
loan credit facility on a pari passu basis with the obligations under the Credit
Documents, (b) such Liens are on the same Property as to which the Lenders also
have a Lien and (c) such Liens are subject to an intercreditor agreement which
shall be in form and substance satisfactory to the Required Lenders.
3. The Credit Parties hereby affirm (i) the representations and
warranties set out in Section 6 of the Credit Agreement are true and correct in
all material respects as of the date hereof (except those which expressly relate
to an earlier period) and (ii) no Default or Event of Default presently exists.
4. Except as modified hereby, all of the terms and provisions of
the Credit Agreement (including Schedules and Exhibits) shall remain in full
force and effect.
5. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Amendment to produce or account
for more than one such counterpart.
6. This Amendment shall be deemed to be a contract made under,
and for all purposes shall be construed in accordance with the laws of the State
of New York.
[Remainder of Page Intentionally Left Blank]
22
<PAGE> 3
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment No. 4 to be duly executed and delivered as of the date first
above written.
BORROWER: RAILWORKS CORPORATION,
a Delaware corporation
By:
---------------------------------
Name: Michael R. Azarela
Title: Executive Vice President and
Chief Financial Officer
CANADIAN
BORROWERS: GANTREX RW COMPANY,
a Nova Scotia unlimited liability company
By:
---------------------------------
Name: Michael R. Azarela
Title: Executive Vice President and
Chief Financial Officer
RAILWORKS CANADA COMPANY,
a Nova Scotia unlimited liability company
By:
---------------------------------
Name: Michael R. Azarela
Title: Executive Vice President and
Chief Financial Officer
[Signature Pages Continue]
23
<PAGE> 4
DOMESTIC
GUARANTORS: ALPHA-KEYSTONE ENGINEERING, INC.,
a Pennsylvania corporation
ANNEX RAILROAD BUILDERS, INC.,
an Indiana corporation
BIRMINGHAM WOOD, INC.,
an Alabama corporation
COMSTOCK HOLDINGS INC.,
a Delaware corporation
COMTRAK CONSTRUCTION, INC.,
a Georgia corporation
CONDON BROTHERS, INC.,
a Washington corporation
CPI CONCRETE PRODUCTS INCORPORATED,
a Tennessee corporation
EARL CAMPBELL CONSTRUCTION COMPANY, INC.,
a Texas corporation
FCM RAIL, LTD., a Michigan corporation
RAILWORKS TRANSIT, INC.,
a New York corporation
GANTREX CORPORATION,
a Pennsylvania corporation
H.P. MCGINLEY INC.,
a Pennsylvania corporation
IMPULSE ENTERPRISES OF NEW YORK, INC.,
a New York corporation
KENNEDY RAILROAD BUILDERS, INC.,
a Pennsylvania corporation
M-TRACK ENTERPRISES, INC.,
a New York corporation
MCCORD TREATED WOOD, INC.,
an Alabama corporation
MERIT RAILROAD CONTRACTORS, INC.,
a Missouri corporation
MIDWEST CONSTRUCTION SERVICES, INC.,
an Indiana corporation
MIDWEST RAILROAD CONSTRUCTION & MAINTENANCE
CORPORATION OF WYOMING, a Wyoming corporation
MINNESOTA RAILROAD SERVICE, INC.,
a Tennessee corporation
By:
--------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each
of the foregoing Guarantors
[Signature Pages Continue]
24
<PAGE> 5
NEOSHO ASIA, INC.,
a Kansas corporation
NEOSHO CENTRAL AMERICA, INC.,
a Kansas corporation
NEOSHO CONSTRUCTION COMPANY, INCORPORATED,
a Kansas corporation
NEOSHO CONTRACTORS, INC.,
a Wyoming corporation NEOSHO INCORPORATED,
a Kansas corporation
NEOSHO INTERNATIONAL, INC.,
a Kansas corporation
NEW ENGLAND RAILROAD CONSTRUCTION CO., INC.,
a Connecticut corporation
NORTHERN RAIL SERVICE AND SUPPLY COMPANY, INC.,
a Michigan corporation
NEOSHO RAIL SERVICES, INC.,
a Kansas corporation
RAILCORP, INC.,
an Ohio corporation
RAILROAD SERVICE, INC.,
a Nevada corporation
SHELDON ELECTRIC, INC.,
a Delaware corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
TWIGG CORPORATION,
a Maryland corporation U.S.
RAILWAY SUPPLY, INC.,
an Indiana corporation
U.S. TRACKWORKS, INC.,
a Michigan corporation
V&R ELECTRICAL CONTRACTORS, INC.,
a New York corporation
WM. A. SMITH CONSTRUCTION CO., INC.,
a Texas corporation
WOOD WASTE ENERGY, INC.,
a Virginia corporation
W.T. BYLER CO., INC.,
a Texas corporation
By:
--------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each
of the foregoing Guarantors
[Signature Pages Continue]
25
<PAGE> 6
L.K. COMSTOCK & COMPANY, INC.,
a New York corporation
By:
-------------------------------------------
Name: C. William Moore
Title: Chief Executive Officer and President
F&V METRO RW, INC.,
a Delaware corporation
RAILWORKS CANADA, INC.
a Delaware corporation
By:
-------------------------------------------
Name: John P. Nuzzo
Title: Assistant Secretary of each
of the foregoing Guarantors
By:
-------------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each
of the foregoing Guarantors
DURA-WOOD, LLC,
a Delaware limited liability company
By: MCCORD TREATED WOOD, INC.,
an Alabama corporation,
its managing member
By:
----------------------------------
Name: Michael R. Azarela
Title: Executive Vice President
[Signature Pages Continue]
26
<PAGE> 7
CANADIAN
GUARANTORS: GANTREX GROUP, LTD.,
an Ontario corporation
GANTREX HOLDINGS-CANADA, INC.,
a Nova Scotia corporation
GANTREX LIMITED,
an Ontario corporation
GANTREX SYSTEMS LIMITED,
an Ontario corporation
PACIFIC NORTHERN RAIL CONTRACTORS CORP.,
a British Columbia company
PACIFIC NORTHERN RAIL CONTRACTORS HOLDINGS LTD.,
a British Columbia company
PACIFIC NORTHERN RAIL RW, INCORPORATED,
a Nova Scotia corporation
PNR LEASING LTD.,
a British Columbia company
PNR INVESTMENTS LTD.,
a British Columbia company
By:
--------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each
of the foregoing Guarantors
[Signature Pages Continue]
27
<PAGE> 8
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By:
--------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
--------------------------------
Name:
Title:
SUMMIT BANK
By:
--------------------------------
Name:
Title:
FLEET BANK, N.A.
By:
--------------------------------
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
BANK ONE, MICHIGAN
By:
--------------------------------
Name:
Title:
M&T BANK
By:
--------------------------------
Name:
Title:
28
<PAGE> 9
BANK OF AMERICA CANADA,
individually in its capacity as a Lender
and in its capacity as Canadian Administrative Agent
By:
---------------------------------
Name:
Title:
CONGRESS FINANCIAL CORPORATION [CANADA]
By:
---------------------------------
Name:
Title:
29
<PAGE> 10
EXHIBIT A
Summary of Term of $100,000,000 Term Loan Credit Facility
30
<PAGE> 1
EXHIBIT 10.42
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 28, 2000
among
RAILWORKS CORPORATION,
as Borrower,
CERTAIN SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE LENDERS NAMED HEREIN,
FIRST UNION NATIONAL BANK,
as Documentation Agent
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
31
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1 DEFINITIONS............................................................................................ 36
1.1 Definitions........................................................................................ 36
1.2 Computation of Time Periods........................................................................ 55
1.3 Accounting Terms; Certain Calculations............................................................. 55
SECTION 2 CREDIT FACILITIES...................................................................................... 55
2.1 Commitments........................................................................................ 55
2.2 Method of Borrowing................................................................................ 56
2.3 Interest........................................................................................... 58
2.4 Repayment.......................................................................................... 59
2.5 Notes.............................................................................................. 59
2.6 Additional Provisions relating to Letters of Credit................................................ 59
2.7 Additional Provisions relating to Swingline Loans.................................................. 63
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES......................................................... 63
3.1 Default Rate....................................................................................... 63
3.2 Extension and Conversion........................................................................... 63
3.3 Prepayments........................................................................................ 64
3.4 Termination and Reduction of Commitments........................................................... 65
3.5 Fees............................................................................................... 66
3.6 Capital Adequacy................................................................................... 66
3.7 Inability To Determine Interest Rate............................................................... 66
3.8 Illegality......................................................................................... 67
3.9 Requirements of Law................................................................................ 67
3.10 Taxes............................................................................................. 68
3.11 Indemnity......................................................................................... 69
3.12 Certain Limitations............................................................................... 69
3.13 Pro Rata Treatment................................................................................ 70
3.14 Sharing of Payments............................................................................... 71
3.15 Payments, Computations, Etc....................................................................... 71
3.16 Evidence of Debt.................................................................................. 72
SECTION 4 GUARANTY............................................................................................... 73
4.1 The Guarantee...................................................................................... 73
4.2 Obligations Unconditional.......................................................................... 73
4.3 Reinstatement...................................................................................... 74
4.4 Certain Additional Waivers......................................................................... 74
4.5 Remedies........................................................................................... 74
4.6 Rights of Contribution............................................................................. 75
4.7 Continuing Guarantee............................................................................... 75
SECTION 5 CONDITIONS............................................................................................. 75
5.1 Conditions to Closing.............................................................................. 75
5.2 Conditions to All Extensions of Credit............................................................. 76
SECTION 6 REPRESENTATIONS AND WARRANTIES......................................................................... 77
6.1 Financial Condition................................................................................ 77
6.2 No Changes or Restricted Payments.................................................................. 77
6.3 Organization; Existence; Compliance with Law....................................................... 77
6.4 Power; Authorization; Enforceable Obligations...................................................... 78
</TABLE>
32
<PAGE> 3
<TABLE>
<S> <C>
6.5 No Legal Bar....................................................................................... 78
6.6 No Material Litigation............................................................................. 78
6.7 No Default......................................................................................... 78
6.8 Ownership of Property; Liens....................................................................... 78
6.9 Intellectual Property.............................................................................. 78
6.10 No Burdensome Restrictions........................................................................ 79
6.11 Taxes............................................................................................. 79
6.12 ERISA............................................................................................. 79
6.13 Governmental Regulations, Etc..................................................................... 80
6.14 Subsidiaries...................................................................................... 80
6.15 Purpose of Extensions of Credit................................................................... 80
6.16 Environmental Matters............................................................................. 80
6.17 Location of Inventory and Chief Executive Office.................................................. 81
SECTION 7 AFFIRMATIVE COVENANTS................................................................................. 81
7.1 Financial Statements............................................................................... 81
7.2 Certificates; Other Information.................................................................... 82
7.3 Notices............................................................................................ 83
7.4 Payment of Obligations............................................................................. 84
7.5 Conduct of Business and Maintenance of Existence................................................... 84
7.6 Maintenance of Property; Insurance................................................................. 84
7.7 Inspection of Property; Books and Records; Discussions............................................. 84
7.8 Environmental Laws................................................................................. 85
7.9 Financial Covenants................................................................................ 85
7.10 Administrative Fees............................................................................... 85
7.11 Additional Guaranties and Stock Pledges........................................................... 85
7.12 Ownership of Subsidiaries......................................................................... 86
7.13 Use of Proceeds................................................................................... 87
7.14 Location of Inventory............................................................................. 87
SECTION 8 NEGATIVE COVENANTS..................................................................................... 87
8.1 Indebtedness....................................................................................... 87
8.2 Liens.............................................................................................. 89
8.3 Consolidation, Merger, Divestiture, etc............................................................ 89
8.4 Acquisitions....................................................................................... 89
8.5 Investments........................................................................................ 90
8.6 Ownership of Equity Interests...................................................................... 90
8.7 Fiscal Year........................................................................................ 90
8.8 Restricted Payments................................................................................ 90
8.9 Sale Leasebacks.................................................................................... 90
8.10 No Further Negative Pledges....................................................................... 90
SECTION 9 EVENTS OF DEFAULT...................................................................................... 92
9.1 Events of Default.................................................................................. 92
9.2 Acceleration; Remedies............................................................................. 93
SECTION 10 AGENCY PROVISIONS..................................................................................... 94
10.1 Appointment....................................................................................... 94
10.2 Delegation of Duties.............................................................................. 94
10.3 Exculpatory Provisions............................................................................ 95
</TABLE>
33
<PAGE> 4
<TABLE>
<S> <C>
10.4 Reliance on Communications........................................................................ 95
10.5 Notice of Default................................................................................. 95
10.6 Non-Reliance on Administrative Agent and Other Lenders............................................ 95
10.7 Indemnification................................................................................... 96
10.8 Administrative Agent in its Individual Capacity................................................... 96
10.9 Successor Administrative Agent.................................................................... 96
SECTION 11 MISCELLANEOUS........................................................................................ 97
11.1 Notices........................................................................................... 97
11.2 Right of Set-Off.................................................................................. 97
11.3 Benefit of Agreement.............................................................................. 98
11.4 No Waiver; Remedies Cumulative.................................................................... 99
11.5 Payment of Expenses, etc......................................................................... 100
11.6 Amendments, Waivers and Consents................................................................. 100
11.7 Counterparts..................................................................................... 101
11.8 Headings......................................................................................... 101
11.9 Survival......................................................................................... 102
11.10 Governing Law; Submission to Jurisdiction; Venue................................................ 102
11.11 Severability.................................................................................... 102
11.12 Entirety........................................................................................ 102
11.13 Binding Effect; Termination..................................................................... 102
11.14 Confidentiality................................................................................. 103
11.15 Source of Funds................................................................................. 103
11.16 Designated Senior Debt.......................................................................... 103
11.17 UCC Financing Statements Filings; Further Assurances............................................ 104
11.18 Conflict........................................................................................ 105
</TABLE>
34
<PAGE> 5
SCHEDULES
<TABLE>
<S> <C>
Schedule 2.1 Commitments
Schedule 2.2(a)(i) Form of Notice of Borrowing
Schedule 2.2(a)(ii) Form of Notice of Request for Letter of Credit
Schedule 2.5-1 Form of Revolving Note
Schedule 2.5-2 Form of Tranche B Term Note
Schedule 2.6(b) Existing Letters of Credit
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 5.1(f)(iii)-1 Form of Officer's Certificate
Schedule 5.1(f)(iii)-2 Form of Officer's Certificate
Schedule 6.8 Existing Liens
Schedule 6.9 Intellectual Property
Schedule 6.14 Subsidiaries
Schedule 6.18(a) Locations of Inventory
Schedule 6.18(b) Locations of Chief Executive Offices
Schedule 7.2(b) Form of Officer's Compliance Certificate
Schedule 7.11 Form of Joinder Agreement
Schedule 8.1 Existing Indebtedness
Schedule 11.1 Lenders' Addresses
Schedule 11.3(b) Form of Assignment and Acceptance
Schedule 11.17 UCC Filing Jurisdictions
</TABLE>
35
<PAGE> 6
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 28, 2000
(the "Credit Agreement"), is by and among RAILWORKS CORPORATION, a Delaware
corporation, certain of its Subsidiaries identified herein as Guarantors, the
lenders identified herein, FIRST UNION NATIONAL BANK, as documentation agent
for the Lenders, and BANK OF AMERICA, N.A., as administrative agent for the
Lenders.
W I T N E S S E T H
WHEREAS, a $105 million revolving credit facility (the "Existing
Revolving Credit Facility") has been established in favor of the Borrower
pursuant to the terms of that Amended and Restated Credit Agreement dated as of
August 5, 1999 (as amended and modified, the "Existing Revolving Credit
Agreement") among the Borrower, the Subsidiaries of the Borrower identified
therein, the lenders identified therein, First Union National Bank, as
Documentation Agent, Bank of America Canada, as Canadian Administrative Agent,
and Bank of America, N.A., as Domestic Administrative Agent;
WHEREAS, a $30 million term loan credit facility (the "Existing Term
Loan Credit Facility") has been established in favor of the Borrower pursuant
to the terms of that Credit Agreement dated as of November 5, 1999 (as amended
and modified, the "Existing Term Loan Credit Agreement") among the Borrower,
the Subsidiaries identified therein, as guarantors, the lenders identified
therein, First Union National Bank, as Documentation Agent, and Bank of
America, N.A., as Administrative Agent;
WHEREAS, the Borrower has requested certain modifications including,
among other things, an increase in the Domestic Revolving Commitments and the
termination of the Canadian Revolving Commitments under the Existing Revolving
Credit Facility;
WHEREAS, the Lenders have agreed to the requested modifications on the
terms and conditions provided herein;
WHEREAS, this Credit Agreement is given in amendment to, restatement
of and substitution for the Existing Revolving Credit Agreement and the
Existing Term Loan Credit Agreement;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 DEFINITIONS.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
"Acquisition" means any transaction in which the Borrower or
any Domestic Subsidiary directly or indirectly (i) acquires any
Property with which an ongoing business is conducted or is to be
conducted, (ii) acquires all or substantially all of the assets of any
Person or division thereof, whether through a purchase of assets,
merger or otherwise, (iii) acquires (in one transaction or as the most
recent transaction in a series of transactions) control of at least a
majority of the Voting Stock of a corporation, other than the
acquisition of Voting Stock of a wholly-owned Subsidiary solely in
connection with the organization and capitalization of that Subsidiary
by the Borrower or a Domestic Subsidiary, or (iv) acquires control of
more than 50% ownership interest in any partnership, joint venture or
limited liability company.
"Administrative Agent" means Bank of America in its capacity
as administrative agent for the Lenders, together with its successors
in such capacity.
36
<PAGE> 7
"Administrative Agent's Fee Letter" means that certain letter
agreement, dated as of March __, 2000, between the Administrative
Agent and the Borrower, as amended, modified, supplemented or replaced
from time to time.
"Administrative Agent's Fees" shall have the meaning assigned
to such term in Section 3.5(c).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person. For purposes of
this definition, "control" when used with respect to any Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agents" means the Administrative Agent and the Collateral
Agent.
"Aggregate Revolving Committed Amount" shall have the meaning
assigned to such term in Section 2.1(a).
"Applicable Percentage" means, for any day, the rate per
annum set forth below opposite the applicable Consolidated Total
Leverage Ratio then in effect, it being understood that the Applicable
Percentage for (i) Base Rate Loans shall be the percentage set forth
under the column "Applicable Percentage for Base Rate Loans", (ii)
Eurodollar Loans shall be the percentage set forth under the column
"Applicable Percentage for Eurodollar Loans and Letter of Credit Fee",
(iii) the Letter of Credit Fee shall be the percentage set forth under
the column "Applicable Percentage for Eurodollar Loans and Letter of
Credit Fee", and (iv) the Commitment Fee shall be the percentage set
forth under the column "Commitment Fee":
<TABLE>
<CAPTION>
Applicable
Percentage
For Applicable Applicable
Consolidated Eurodollar Loans Percentage Percentage
Pricing Total Leverage and for for
Level Ratio Letter of Credit Fee Base Rate Loans Commitment Fee
----- ----- -------------------- --------------- --------------
<S> <C> <C> <C> <C>
I > 3.5 2.50% 1.00% 0.50%
-
II > 3.0 but < 3.5 2.25% 0.75% 0.50%
-
III > 2.5 but < 3.0 2.00% 0.50% 0.375%
-
IV > 2.0 but < 2.5 1.75% 0% 0.30%
-
V > 1.5 but < 2.0 1.50% 0% 0.30%
-
VI < 1.5 1.25% 0% 0.25%
</TABLE>
The Applicable Percentage shall be determined and adjusted quarterly
on the date (each a "Rate Determination Date") five (5) Business Days
after the date by which the annual and quarterly compliance
certificates and related financial statements and information are
required in accordance with the provisions of Sections 7.1(a) and (b)
and Section 7.2(b), as appropriate; provided, however, that:
(i) the initial Applicable Percentages shall be
based on the financial statements and related financial
information for the fiscal quarter of the Borrower ended
December 31, 1999 and shall remain in effect at such level
until the Rate Determination Date to occur in connection with
the fiscal quarter of the Borrower ending March 31, 2000; and
(ii) in the event the Borrower does not deliver an
annual or quarterly compliance certificate and related
financial statements and information to the Administrative
Agent by the date required by Sections 7.1(a) and (b) and
Section 7.2(b), as appropriate, the Applicable Percentages
shall be based on Pricing Level I until such time as an
appropriate compliance certificate and related financial
statements and information are delivered, whereupon the
37
<PAGE> 8
applicable Pricing Level shall be adjusted based on the
information contained in such compliance certificate and
related financial statements and information.
Each Applicable Percentage shall be effective from a Rate
Determination Date until the next Rate Determination Date. The
Administrative Agent shall determine the appropriate Applicable
Percentages in the pricing matrix promptly upon receipt of the
quarterly or annual compliance certificate and related financial
information and shall promptly notify the Borrower and the Lenders of
any change thereof. Such determinations by the Administrative Agent
shall be conclusive absent manifest error. Adjustments in the
Applicable Percentages shall be effective as to existing Extensions of
Credit as well as new Extensions of Credit made thereafter.
If the Borrower's Debt Rating is at any time upgraded to at least BB
by S&P's or Ba2 by Moody's, then the Lenders agree to consider
amending this definition of "Applicable Percentage" such that the
Applicable Percentages shall be based on the Debt Rating rather than
the Consolidated Total Leverage Ratio. The foregoing sentence is not
intended to, and shall not be construed to, in any way require the
Lenders to amend this definition and the decision of any Lender to
amend this definition shall be within such Lender's sole discretion.
"Bank of America" means Bank of America, N.A., and its
successors.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of
the United States Code, as amended, modified, succeeded or replaced
from time to time.
"Bankruptcy Event" means, with respect to any Person, the
occurrence of any of the following with respect to such Person: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property
or ordering the winding up or liquidation of its affairs; or (ii)
there shall be commenced against such Person an involuntary case under
any applicable bankruptcy, reorganization, insolvency or other similar
law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (iii) such
Person shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its Property or make any general assignment for
the benefit of creditors; or (iv) such Person shall be unable to, or
shall admit in writing its inability to, pay its debts generally as
they become due.
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal the greater of (a) the Federal Funds Rate in effect on such day
plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or
the Federal Funds Rate, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means RailWorks Corporation, a Delaware
corporation, together with its successors and permitted assigns.
38
<PAGE> 9
"Borrowing Base" means, as of any day, an amount equal to the
sum of (a) eighty-five percent (85%) of Eligible Receivables, (b)
eighty-five percent (85%) of Eligible Receivables Retainage and (c)
sixty percent (60%) of Eligible Inventory, in each case as set forth
in the most recent Borrowing Base Certificate delivered to the
Administrative Agent and the Lenders in accordance with the terms of
Section 7.1(c), with adjustments to give effect to Acquisitions and
Divestitures since the date of such Borrowing Base Certificate on a
Pro Forma Basis.
"Borrowing Base Certificate" shall have the meaning assigned
to such term in Section 7.1(c).
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina,
Baltimore, Maryland or New York, New York are authorized or required
by law to close, provided that, when used in connection with a
Eurodollar Loan, such day shall also be a day on which dealings
between banks are carried on in U.S. Dollar deposits in London,
England.
"Capital Expenditures" means, for any period, without
duplication, all expenditures (whether paid in cash or other
consideration) during such period that, in accordance with GAAP, are
or should be included in additions to property, plant and equipment or
similar items reflected in the consolidated statement of cash flows
for such period; provided, that Capital Expenditures shall not
include, for purposes hereof, expenditures of proceeds of insurance
settlements, condemnation awards and other settlements in respect of
lost, destroyed, damaged or condemned assets, equipment or other
property to the extent such expenditures are made to replace or repair
such lost, destroyed, damaged or condemned assets, equipment or other
property or otherwise to acquire assets or properties useful in the
business of the members of the Consolidated Group.
"Capital Lease" means, as applied to any Person, any lease of
any Property by that Person as lessee which, in accordance with GAAP,
is or should be accounted for as a capital lease on the balance sheet
of that Person.
"Capital Lease Obligation" means the capital lease
obligations relating to a Capital Lease determined in accordance with
GAAP.
"Cash Equivalents" means (a) securities issued or directly
and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) U.S. Dollar denominated time deposits and
certificates of deposit of (i) any Revolving Lender, or (ii) any
domestic commercial bank of recognized standing (y) having capital and
surplus in excess of $500,000,000 and (z) whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof (any such bank
being an "Approved Bank"), in each case with maturities of not more
than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the
parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P or P-1 (or the equivalent thereof) or better
by Moody's and maturing within six months of the date of acquisition,
(d) repurchase agreements entered into by a Person with a bank or
trust company (including any of the Revolving Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000
for direct obligations issued by or fully guaranteed by the United
States of America in which such Person shall have a perfected first
priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of
the amount of the repurchase obligations, (e) obligations of any State
of the United States or any political subdivision thereof, the
interest with respect to which is exempt from federal income taxation
under Section 103 of the Internal Revenue Code, having a long term
rating of at least AA- or Aa-3 by S&P or Moody's, respectively, and
maturing within three years from the date of acquisition thereof, (f)
Investments in municipal auction preferred stock (i) rated AAA (or the
equivalent thereof) or better by S&P or Aaa (or the equivalent
thereof) or better by Moody's and (ii) with dividends that reset at
least once every 365 days, (g) Investments, classified in accordance
with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which
are administered by reputable financial institutions having capital of
at least $100,000,000 and
39
<PAGE> 10
the portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (f), and (h) other
Investments deemed to be cash equivalents in accordance with GAAP.
"Change of Control" means the occurrence of either of the
following events: (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Borrower, a
corporation owned directly or indirectly by the stockholders of the
Borrower or any of their respective Affiliates, becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Borrower representing 50%
or more of the total voting power represented by the Borrower's then
outstanding securities that vote generally in the election of
directors; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the
Borrower's Board of Directors and any new directors whose election by
the Borrower's Board of Directors or nomination for election by the
Borrower's stockholders was approved by a vote or a majority of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority of the Borrower's Board of Directors.
"Closing Date" means the date hereof.
"Collateral" shall have the meaning assigned to such term in
the Security Agreement.
"Collateral Agent" means Bank of America, N.A. in its
capacity as collateral agent for the Lenders, together with its
successors in such capacity.
"Combination" has the meaning assigned to such term in the
Registration Statement.
"Commitments" means the Revolving Commitments, the LOC
Commitment, the Swingline Commitment and the Tranche B Term Loan
Commitments.
"Commitment Fee" shall have the meaning provided in Section
3.5(a).
"Commitment Period" means the period from and including the
Closing Date to but not including the earlier of (i) the Termination
Date, or (ii) the date on which the Commitments terminate in
accordance with the provisions of this Credit Agreement.
"Consolidated Capital Expenditures" means, for any period,
Capital Expenditures for the Consolidated Group on a consolidated
basis determined in accordance with GAAP applied on a consistent
basis.
"Consolidated EBITDA" means, for any period for the
Consolidated Group, the sum of Consolidated Net Income for such period
plus Consolidated Interest Expense for such period plus all provisions
for any federal, state or other domestic and foreign income taxes for
such period plus depreciation and amortization for such period, in
each case on a consolidated basis determined in accordance with GAAP
applied on a consistent basis, but excluding for purposes hereof
extraordinary gains and losses and related tax effects thereon.
"Consolidated Fixed Charge Coverage Ratio" means, for the
period of four consecutive fiscal quarters ending as of the date of
determination, the ratio of Consolidated EBITDA for such period to
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, for any period for the
Consolidated Group, the sum of the cash portion of Consolidated
Interest Expense for such period plus Restricted Payments paid during
such period plus fifteen percent (15%) of Senior Funded Debt
outstanding on the last day of such period, in each case on a
consolidated basis determined in accordance with GAAP applied on an
consistent basis. Except as otherwise expressly provided, the
applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.
40
<PAGE> 11
"Consolidated Group" means the Borrower and its consolidated
subsidiaries as determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any period for the
Consolidated Group, all interest expense (including the amortization
of debt discount and premium, the interest component under Capital
Leases and the implied interest component under Securitization
Transactions) for such period, in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
Except as expressly provided otherwise, the applicable period shall be
for the four consecutive quarters ending as of the date of
determination.
"Consolidated Net Income" means for any period for the
Consolidated Group, net income for such period on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
Except as expressly provided otherwise, the applicable period shall be
for the four consecutive quarters ending as of the date of
determination.
"Consolidated Net Worth" means, as of any date for the
Consolidated Group, shareholders' equity or net worth as determined in
accordance with GAAP.
"Consolidated Senior Debt" means, as of any date,
Consolidated Total Funded Debt on such date less Subordinated Debt of
the Consolidated Group on such date on a consolidated basis as
determined in accordance with GAAP.
"Consolidated Senior Leverage Ratio" means, as of the last
day of any fiscal quarter, the ratio of Consolidated Senior Debt on
such day to Consolidated EBITDA for the period of four consecutive
fiscal quarters ending as of such day.
"Consolidated Total Funded Debt" means, as of any date,
Funded Debt of the Consolidated Group on such date determined on a
consolidated basis in accordance with GAAP applied on a consistent
basis.
"Consolidated Total Leverage Ratio" means, as of the last day
of any fiscal quarter, the ratio of Consolidated Total Funded Debt on
such day to Consolidated EBITDA for the period of four consecutive
fiscal quarters ending as of such day.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any material
agreement, instrument or undertaking to which such Person is a party
or by which it or any of its property is bound.
"Credit Documents" means a collective reference to this
Credit Agreement, the Notes, the LOC Documents, the Pledge Agreement,
the Security Agreement, each Joinder Agreement, the Administrative
Agent's Fee Letter, and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or
thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Debt Rating" means the rating for the Borrower's senior
unsecured (non-credit enhanced) long term debt as determined by S&P or
Moody's.
"Debt Transaction" means, with respect to the Borrower and
the Domestic Subsidiaries, any sale, issuance or placement of
Subordinated Debt permitted by Section 8.1.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time, (i) has failed to make an Extension of Credit required
pursuant to the terms of this Credit Agreement, (ii) has failed to pay
to any
41
<PAGE> 12
Agent or any Lender an amount owed by such Lender pursuant to the
terms of the Credit Agreement or any other of the Credit Documents, or
(iii) has been deemed insolvent or has become subject to a bankruptcy
or insolvency proceeding or to a receiver, trustee or similar
proceeding.
"Divestiture" means any transaction by which the Borrower or
any Domestic Subsidiary sells, leases, transfers or otherwise disposes
of (i) any Property with which an ongoing business is conducted or to
be conducted; (ii) all or substantially all or any substantial portion
of its assets; or (iii) the capital stock of a Subsidiary, in each
case other than (x) the sale of Inventory in the ordinary course of
business, (y) the sale, lease, transfer or other disposition of plant,
property and equipment which is no longer used or useful in the
business of the Borrower or such Domestic Subsidiary or as to which
the proceeds thereof are reinvested in plant, property or equipment
within six months thereof, or (z) sales, leases, transfers or other
dispositions of Property or capital stock of a Subsidiary by one
Credit Party to another Credit Party.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Credit Party" means any Credit Party which is
incorporated or organized under the laws of any State of the United
States or the District of Columbia.
"Domestic Subsidiary" means any Subsidiary which is
incorporated or organized under the laws of any State of the United
States or the District of Columbia.
"Eligible Inventory" means, as of any date of determination,
the aggregate book value (based on a FIFO valuation) of all inventory
owned by the Credit Parties on a consolidated basis after deducting
allowances or reserves relating thereto, as shown on the books and
records of the Credit Parties, but excluding in any event inventory
which is subject to any Lien that is not a Permitted Lien.
"Eligible Receivables" means, as of any date of
determination, the aggregate book value of all accounts, accounts
receivable, receivables, and obligations for payment created or
arising from the sale of inventory or the rendering of services in the
ordinary course of business (collectively, the "Receivables"), owned
by or owing to the Credit Parties on a consolidated basis after
deducting retainage and allowances or reserves relating thereto, as
shown on the books and records of the Credit Parties, but excluding in
any event (a) Receivables owing by an account debtor which is not
solvent or is subject to any bankruptcy or insolvency proceeding of
any kind and (b) any Receivable which is (i) not subject to a
perfected, first priority Lien in favor for the Collateral Agent to
secure the obligations of the Credit Parties under the Security
Agreement or (ii) subject to any other Lien that is not a Permitted
Lien.
"Eligible Receivables Retainage" means, as of any date of
determination, the aggregate book value of that portion of Receivables
owned by or owing to the Credit Parties on a consolidated basis
consisting of retainage but excluding in any event such portion of
Receivables owing by an account debtor which is not solvent or is
subject to any bankruptcy or insolvency proceeding of any kind.
"Environmental Laws" means any and all lawful and applicable
federal, state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges,
releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.
"Equity Transaction" means, with respect to the Borrower and
the Domestic Subsidiaries, any issuance of shares of its capital stock
or other equity interest, other than (i) an issuance by a Domestic
Subsidiary to the Borrower or a Domestic Subsidiary, (ii) an issuance
in connection with a conversion of debt securities to equity, (iii) an
issuance in connection with the exercise by a present or former
employee, officer or director under a stock incentive plan, stock
option plan or other equity-based compensation plan
42
<PAGE> 13
or arrangement, (iv) the issuance of the capital stock of the Borrower
to the seller as consideration for any Permitted Acquisition, and (v)
an issuance needed to qualify directors under applicable law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity which is under common
control with any Credit Party or any of its Subsidiaries within the
meaning of Section 4001(a)(14) of ERISA, or is a member of a group
which includes any Credit Party or any of its Subsidiaries and which
is treated as a single employer under Sections 414(b) or (c) of the
Internal Revenue Code.
"ERISA Event" means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (ii) the
withdrawal by any Credit Party or any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it
was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(iii) the distribution of a notice of intent to terminate or the
actual termination of a Plan pursuant to Section 4041(a)(2) or 4041A
of ERISA; (iv) the institution of proceedings to terminate or the
actual termination of a Plan by the PBGC under Section 4042 of ERISA;
(v) any event or condition which would reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan; (vi) the
complete or partial withdrawal of any Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan; (vii)
the conditions for imposition of a lien under Section 302(f) of ERISA
exist with respect to any Plan; or (vii) the adoption of an amendment
to any Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
<TABLE>
<S> <C>
Eurodollar Rate = Interbank Offered Rate
----------------------
1 - Eurodollar Reserve Percentage
</TABLE>
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under any regulations of the Board of Governors of the Federal
Reserve System (or any successor) or other Governmental Authority
having jurisdiction with respect thereto) as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not the applicable Lender has any Eurocurrency
liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed subject to reserve
requirements without benefits of credits for proration, exceptions or
offsets that may be available from time to time to the applicable
Lender. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" means such term as defined in Section 9.1.
"Existing Letters of Credit" means those Letters of Credit
outstanding on the Closing Date and identified on Schedule 2.6(b).
"Extension of Credit" means, as to any Lender, the making of,
or participation in, a Loan by such Lender or the issuance or
extension of, or participation in, a Letter of Credit by such Lender.
43
<PAGE> 14
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole
multiple of 1/100 of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (A) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate
on such transactions on the next preceding Business Day and (B) if no
such rate is so published on such next preceding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to
the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
"Foreign Subsidiary" means a Subsidiary which is not a
Domestic Subsidiary.
"Founding Companies" means the Domestic Subsidiaries which
were party to the Original Credit Agreement on the closing date
thereof (being August 4, 1998), as those Domestic Subsidiaries existed
immediately prior to the Combination.
"Funded Debt" means, with respect to any Person, without
duplication, (i) all Indebtedness of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are
customarily made, (iii) all purchase money Indebtedness (including for
purposes hereof, indebtedness and obligations described in clauses
(iii) and (iv) of the definition of "Indebtedness") of such Person,
including without limitation the principal portion of all obligations
of such Person under Capital Leases, (iv) all Support Obligations of
such Person with respect to Funded Debt of another Person, (v) the
maximum available amount of all standby letters of credit or
acceptances issued or created for the account of such Person, (vi) all
Funded Debt of another Person secured by a Lien on any Property of
such Person, whether or not such Funded Debt has been assumed,
provided that for purposes of this clause (vi) the amount of such
Funded Debt shall be limited to the greater of (A) the amount of such
Funded Debt as to which there is recourse to such Person and (B) the
fair market value of the property which is subject to the Lien, (vii)
the outstanding attributed principal amount under any Securitization
Transaction, and (viii) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product to which such Person is
a party, where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP. The Funded Debt of any Person shall (i)
include the Funded Debt of any partnership or joint venture in which
such Person is a general partner or joint venturer, but only to the
extent to which there is recourse to such Person for the payment of
such Funded Debt, but (ii) exclude, in any event, amounts in respect
of financed insurance premium obligations permitted under Section
8.1(g) and
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms
of Section 1.3.
"Governmental Authority" means any federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranteed Obligations" means, as to each Guarantor, without
duplication, (i) all obligations of the Borrower (including interest
accruing after a Bankruptcy Event regardless of whether such interest
is allowed as a claim under the Bankruptcy Code) to the Lenders and
the Agents, whenever arising, under this Credit Agreement, the Notes
or the other Credit Documents, and (ii) all liabilities and
obligations of the Borrower to any Lender or any Affiliate of a
Lender, whenever arising, under any Hedging Agreement.
"Guarantor" means each of those Persons identified as a
"Guarantor" on the signature pages hereto and each other Person which
may hereafter become a Guarantor by execution of a Joinder Agreement,
together with its successors and permitted assigns.
"Hedging Agreement" means any interest rate protection
agreement or foreign currency exchange agreement between the Borrower
and any Lender, or any Affiliate of a Lender, relating to the
Obligations.
44
<PAGE> 15
"Indebtedness" of any Person means (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (iii) all obligations of
such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (iv) all obligations
of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than trade debt
incurred in the ordinary course of business and due within six months
of the incurrence thereof) which would appear as liabilities on a
balance sheet of such Person, (v) all obligations of such Person under
take-or-pay or similar arrangements or under commodities agreements,
(vi) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, provided that
for purposes hereof the amount of such Indebtedness shall be limited
to the greater of (A) the amount of such Indebtedness as to which
there is recourse to such Person and (B) the fair market value of the
property which is subject to the Lien, (vii) all Support Obligations
of such Person, (viii) the principal portion of all obligations of
such Person under Capital Leases, (ix) all obligations of such Person
in respect of interest rate protection agreements, foreign currency
exchange agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements
(including, but not limited to, the Hedging Agreements), (x) the
maximum amount of all standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (xi) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, (xii) the outstanding
attributed principal amount under any Securitization Transaction and
(xiii) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product to which such Person is a party,
where such transaction is considered borrowed money indebtedness for
tax purposes but is classified as an operating lease in accordance
with GAAP. The Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person
is a general partner or a joint venturer, but only to the extent to
which there is recourse to such Person for payment of such
Indebtedness.
"Intellectual Property" means all Copyrights, Copyright
Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses,
as each of those terms are defined in the Security Agreement.
"Interbank Offered Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
(rounded upwards, if necessary, to the nearest whole multiple of 1/100
of 1%) equal to the rate of interest, determined by the Administrative
Agent on the basis of the offered rates for deposits in Dollars for a
period of time corresponding to such Interest Period (and commencing
on the first day of such Interest Period), appearing on Telerate Page
3750 (or, if, for any reason, Telerate Page 3750 is not available, the
Reuters Screen LIBO Page) as of approximately 11:00 A.M. (London time)
two (2) Business Days before the first day of such Interest Period. As
used herein, "Telerate Page 3750" means the display designated as page
3750 by Dow Jones Markets, Inc. (or such other page as may replace
such page on that service for the purpose of displaying the British
Bankers Association London interbank offered rates) and "Reuters
Screen LIBO Page" means the display designated as page "LIBO" on the
Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks).
"Interest Payment Date" means (i) as to any Swingline Loan,
the last day of each Interest Period for such Swingline Loan or such
other dates as the Swingline Lender may agree or require, (ii) as to
any Base Rate Loan (other than a Swingline Loan), (A) the last day of
each March, June, September and December, (B) in the case of Base Rate
Loans comprising Revolving Loans, the Termination Date and (C) in the
case of Base Rate Loans comprising Tranche B Term Loan, the date of
the final principal amortization installment on the Tranche B Term
Loan, and (iii) as to any Eurodollar Loan, (A) the last day of each
Interest Period for such Eurodollar Loan, (B) the date of repayment of
principal of such Eurodollar Loan, (C) in the case of Eurodollar Loans
comprising Revolving Loans, the Termination Date, (D) in the case of
Eurodollar Loans comprising the Tranche B Term Loan, the date of the
final principal amortization installment on the Tranche B Term Loan
and (E) if the applicable Interest Period is more than three months,
then also the date three months from the
45
<PAGE> 16
beginning of the Interest Period and each three months thereafter. If
an Interest Payment Date falls on a date which is not a Business Day,
such Interest Payment Date shall be deemed to be the next succeeding
Business Day.
"Interest Period" means (i) as to any Eurodollar Loan, a
period of one, two, three or six months' duration, as the Borrower may
elect, commencing in each case on the date of the borrowing (including
conversions, extensions and renewals) and (ii) as to any Swingline
Loan, a period of such duration as the Borrower may request and the
Swingline Lender may agree in accordance with the provisions of
Section 2.7, commencing in each case on the date of borrowing;
provided, however, (A) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next
preceding Business Day), (B)(i) in the case of Eurodollar Loans
comprising Revolving Loans, no Interest Period shall extend beyond the
Termination Date and (ii) in the case of Eurodollar Loans comprising
the Tranche B Term Loan, no Interest Period shall extend beyond any
principal amortization payment date unless, and to the extent that,
the portion of the applicable Tranche B Term Loan comprised of
Eurodollar Loans expiring prior to the applicable principal
amortization payment date plus the portion of the applicable Tranche B
Term Loan comprised of Base Rate Loans equals or exceeds the principal
amortization payment then due, and (C) where an Interest Period begins
on a day for which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such Interest
Period shall end on the last day of such calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, and any successor statute thereto, as interpreted by
the rules and regulations issued thereunder, in each case as in effect
from time to time. References to sections of the Internal Revenue Code
shall be construed also to refer to any successor sections.
"Investment", in any Person, means any loan or advance to
such Person, any purchase or other acquisition of any capital stock,
warrants, rights, options, obligations or other securities of, or
equity interest in, such Person, any capital contribution to such
Person or any other investment in such Person, including, without
limitation, any Support Obligation incurred for the benefit of such
Person.
"Issuing Lender" means Bank of America.
"Issuing Lender Fees" shall have the meaning given such term
in Section 3.5(b)(ii).
"Joinder Agreement" means a joinder agreement substantially
in the form of Schedule 7.11 hereto executed and delivered by a
Domestic Subsidiary in accordance with the provisions of Section 7.11.
"Joint Venture" means any corporation, partnership, limited
liability company or other entity in which the Borrower or any
Domestic Subsidiary owns or acquires fifty percent (50%) or less of
the Voting Stock or economic interests, and which conducts any
business that the Credit Parties would be permitted to conduct in
accordance with Section 7.5.
"Lenders" means the Revolving Lenders and the Tranche B Term
Lenders, and their successors and assigns.
"Letter of Credit" means any Existing Letter of Credit or any
letter of credit issued by the Issuing Lender for the account of the
Borrower in accordance with the terms of Section 2.1(b).
"Letter of Credit Fee" shall have the meaning given such term
in Section 3.5(b)(i).
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory
or otherwise), preference, priority or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, and any lease in the nature thereof).
46
<PAGE> 17
"Loan" or "Loans" means the Revolving Loans, the Swingline
Loans and/or the Tranche B Term Loan, and the Base Rate Loans,
Eurodollar Loans and Quoted Rate Swingline Loans comprising such
Loans.
"LOC Commitment" means, with respect to the Issuing Lender,
the commitment of the Issuing Lender to issue, and to honor payment
obligations under, Letters of Credit and, with respect to the
Revolving Lenders, the commitment of each Revolving Lender to purchase
participation interests in the Letters of Credit up to such Revolving
Lender's LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to
such term in Section 2.1(b).
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned
or at risk or (ii) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (ii) the aggregate amount of all drawings
under Letters of Credit honored by the Issuing Lender but not
theretofore reimbursed.
"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business,
assets or liabilities of the Consolidated Group taken as a whole, (ii)
the ability of the Credit Parties taken as a whole to perform any
material obligation under the Credit Documents to which it is a party
or (iii) the rights and remedies of the Lenders under the Credit
Documents.
"Material Credit Party" means (i) the Borrower and (iii) any
other Credit Party at any time whose assets at the time of
determination constitute five percent (5%) or more of the assets of
the Consolidated Group or whose revenues at the time of determination
constitute five percent (5%) or more of the revenues of the
Consolidated Group.
"Materials of Environmental Concern" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which any Credit Party
or any of its Subsidiaries or any ERISA Affiliate and at least one
employer other than any Credit Party or any of its Subsidiaries or any
ERISA Affiliate are contributing sponsors.
"Net Cash Proceeds" means the aggregate proceeds paid in cash
or Cash Equivalents received by the Borrower or any Domestic
Subsidiary in respect of any Divestiture, Equity Transaction or Debt
Transaction, net of (a) direct costs (including, without limitation,
legal, accounting and investment banking fees, and sales commissions)
paid or payable as a result thereof, (b) taxes paid or payable as a
result thereof, (c) in the case of any Divestiture, repayment of
Indebtedness that is required to be repaid in connection with such
Divestiture, and (d) in the case of any Divestiture, appropriate
amounts to be provided by the Borrower or any Domestic Subsidiary, as
the case may be, as a reserve, in accordance with GAAP, against
liabilities associated with such Divestiture and retained by the
Borrower or any Domestic Subsidiary, as the case may be, after such
Divestiture, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such
47
<PAGE> 18
Divestiture, provided, that, "Net Cash Proceeds" shall include an
amount equal to any reserves previously taken against liabilities
associated with Divestitures immediately upon those reserves being
determined to be in excess of such liabilities. The "Net Cash
Proceeds" of any Divestiture, Equity Transaction or Debt Transaction
shall include, without limitation, any cash or Cash Equivalents
received upon the sale or other disposition of any non-cash
consideration received by the Borrower or any Domestic Subsidiary in
respect of such Divestiture, Equity Transaction or Debt Transaction.
In addition, the "Net Cash Proceeds" of any Divestiture shall include
any other amounts defined as "Net Cash Proceeds" of such transaction
under the Senior Subordinated Note Indenture.
"Note Borrowing Base" means the "Borrowing Base" as such term
is defined in the Senior Subordinated Note Indenture.
"Note Default" or "Note Event of Default" means a Default or
Event of Default under the Senior Subordinated Note Indenture.
"Notes" means the Revolving Notes and the Tranche B Term
Notes.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.2(a)(i), as required by Section
2.1(b)(i) and Section 2.1(b)(ii).
"Notice of Extension/Conversion" means a written notice of
extension or conversion in substantially the form of Schedule 3.2, as
required by Section 3.2.
"Obligations" means, collectively, the Revolving Obligations
and the Tranche B Term Loan.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property which is not a Capital Lease other
than any such lease in which that Person is the lessor.
"Original Credit Agreement" means that certain Credit
Agreement dated as of August 4, 1998 among the Borrower, certain
Subsidiaries of the Borrower, the lenders identified therein, First
Union National Bank, as Documentation Agent, and NationsBank, N.A.
(now known as Bank of America, N.A.), as Administrative Agent,
"Participation Interest" means the purchase by a Lender of a
participation in LOC Obligations as provided in Section 2.6(b), in
Swingline Loans as provided in Section 2.7 and in Loans as provided in
Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereof.
"Permitted Acquisitions" means Acquisitions permitted
hereunder or consented to by the Required Lenders in accordance with
the provisions hereof.
"Permitted Investments" means Investments which are either
(i) cash and Cash Equivalents; (ii) accounts receivable created,
acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; (iii)
Investments consisting of stock, obligations, securities or other
property received in settlement of accounts receivable (created in the
ordinary course of business) from obligors; (iv) Support Obligations
permitted by Section 8.1(m); (v) Acquisitions permitted by Section
8.4; (vi) advances or loans to employees, directors or officers to pay
the tax liabilities associated with participation in the Stock
Incentive Plan and other advances or loans to employees, directors,
officers or agents outstanding on the Closing Date in an aggregate
amount not to exceed $7,000,000, and advances or loans to employees,
directors or officers to pay the tax liabilities associated with
participation in the Stock Incentive Plan and other advances or loans
to employees, directors, officers or agents, in each case made after
Closing Date in an aggregate outstanding amount not to exceed
$2,000,000; (vii) advances or loans to customers or suppliers (other
than advance payment of sums due under contracts in the ordinary
course of business) that do not exceed $500,000
48
<PAGE> 19
in the aggregate at any one time outstanding; (viii) Investments by the
Borrower, any Domestic Subsidiary and/or any Affiliate of the Borrower
or any Domestic Subsidiary in connection with a Securitization
Transaction permitted hereunder; (ix) Investments existing on the
Closing Date made by the Borrower or any Domestic Subsidiary in or to
its Subsidiaries; (x) Investments by the Borrower or any Domestic
Subsidiary in and to a Domestic Credit Party; (xi) Investments in Joint
Ventures, provided, however, that, at the time each such Investment is
made after giving effect to such Investment, (A) Investments in any one
Joint Venture shall not exceed (on a cost basis) an amount equal to
thirty percent (30%) of Consolidated EBITDA on a Pro Forma Basis for
the immediately preceding fiscal year, (B) Investments in all Joint
Ventures shall not exceed (on a cost basis) in any fiscal year an
aggregate amount equal to sixty percent (60%) of Consolidated EBITDA on
a Pro Forma Basis for the immediately preceding fiscal year, and (C)
the Consolidated Group's percentage share of the revenues of all Joint
Ventures for the four fiscal quarter period most recently ended does
not exceed fifteen percent (15%) of the revenues of the Consolidated
Group determined on a consolidated basis in accordance with GAAP for
such four fiscal quarter period; and (xii) other loans, advances and
investments of a nature not contemplated in the foregoing subsections
in an amount not to exceed (A) at any time prior to June 30, 2000,
$7,000,000 in the aggregate at any time outstanding and (B) at any time
on or after June 30, 2000, $5,000,000 in the aggregate at any time
outstanding.
"Permitted Liens" means:
(i) Liens in favor of the Collateral Agent on behalf
of the Lenders;
(ii) Liens in favor of a Lender or an Affiliate of a
Lender pursuant to a Hedging Agreement, but only (A) to the
extent such Liens secure obligations under such agreements
permitted under Section 8.1, (B) to the extent such Liens are
on the same collateral as to which the Lenders also have a
Lien and (C) so long as the obligations under such Hedging
Agreement and the Obligations hereunder and under the other
Credit Documents shall share pari passu in the collateral
subject to such Liens
(iii) Liens (other than Liens created or imposed
under ERISA) for taxes, assessments or governmental charges
or levies not yet due or Liens for taxes being contested in
good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on
account thereof);
(iv) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers
and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary
course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are
unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(v) Liens (other than Liens created or imposed under
ERISA) incurred or deposits made by the Borrower and its
Domestic Subsidiaries in the ordinary course of business in
connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the
performance of tenders, statutory obligations, bids, leases,
government contracts, performance and return-of-money bonds
and other similar obligations (exclusive of obligations for
the payment of borrowed money);
(vi) Liens in connection with attachments or
judgments (including judgment or appeal bonds) provided that
the judgments secured shall, within 30 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 30 days
after the expiration of any such stay;
49
<PAGE> 20
(vii) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered Property for its intended purposes;
(viii) Liens securing purchase money and
sale/leaseback Indebtedness (including Capital Leases) to the
extent permitted under Sections 8.1(b) and 8.1(c) provided
that any such Lien attaches only to the Property financed or
leased and such Lien attaches thereto concurrently with or
within 90 days after the acquisition thereof in connection
with the purchase money transactions and within 30 days after
the closing of any sale/leaseback transaction;
(ix) leases or subleases granted to others not
interfering in any material respect with the business of the
Borrower or any Domestic Subsidiary;
(x) any interest of title of a lessor under, and
Liens arising from UCC financing statements (or equivalent
filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Credit
Agreement;
(xi) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
(xii) Liens created or deemed to exist in connection
with a Securitization Transaction permitted hereunder
(including any related filings of any financing statements),
but only to the extent that any such Lien relates to the
applicable receivables and related property actually sold,
contributed or otherwise conveyed pursuant to such
transaction;
(xiii) Liens deemed to exist in connection with
Investments in repurchase agreements permitted under Section
8.5;
(xiv) normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository
institutions;
(xv) Liens in respect of Indebtedness permitted
under Section 8.1(g), limited solely to sums payable under
the policy or policies to which such Indebtedness relates;
(xvi) Liens on the capital stock or other equity
interests of any Foreign Subsidiary owned by the Borrower or
any Domestic Subsidiary securing Indebtedness of Foreign
Subsidiaries;
(xvii) Liens existing as of the Closing Date and set
forth on Schedule 6.8; provided that no such Lien shall at
any time be extended to or cover any Property other than the
Property subject thereto on the Closing Date; and
(xviii) Liens not described in the foregoing clauses
securing Indebtedness otherwise permitted under Section 8.1,
provided that (A) the aggregate principal amount of
Indebtedness secured by all such Liens shall not exceed
$2,000,000 and (B) such Liens shall be limited to specific
Property and shall not be a blanket Lien.
"Permitted Preferred Stock" means preferred stock issued by
the Borrower that (a) does not have a cash dividend that exceeds 6%
per annum, (b) does not require a mandatory redemption of any kind
prior to the Termination Date and (c) is otherwise on terms and
conditions reasonably satisfactory to the Administrative Agent and the
Required Lenders.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated) or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or,
if
50
<PAGE> 21
such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Pledge Agreement" means the Amended and Restated Pledge
Agreement dated as of the Closing Date given by the Borrower and the
Guarantors identified therein to the Collateral Agent to secure the
obligations of the Credit Parties under the Credit Documents, as such
Amended and Restated Pledge Agreement may be amended and modified from
time to time.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina, with each
change in the Prime Rate being effective on the date such change is
publicly announced as effective (it being understood and agreed that
the Prime Rate is a reference rate used by Bank of America in
determining interest rates on certain loans and is not intended to be
the lowest rate of interest charged on any extension of credit by Bank
of America to any debtor).
"Pro Forma Basis" means, with respect to the calculation of
the financial covenants set forth in Section 7.9, that (a) for
purposes of calculation of Consolidated Net Income and Consolidated
EBITDA, any Transaction occurring during the applicable period shall
be deemed to have occurred as of the first day of such period,
provided that (i) if financial information necessary for calculating
Consolidated Net Income and Consolidated EBITDA of the Person or
Property acquired in any Transaction is not available for any fiscal
quarter ended prior to the date of such Transaction, Consolidated Net
Income and Consolidated EBITDA for such fiscal quarter shall be deemed
to be the result obtained by dividing (A) the Consolidated Net Income
and Consolidated EBITDA of such Person or Property for the period of
four consecutive fiscal quarters most recently ended prior to the date
of such Transaction for which annual financial statements are
available, by (B) four, and (ii) any adjustments to pro forma
consolidated income statement items attributable to any Transaction
shall be performed in accordance with Rule 11.02 of Regulation S-X
promulgated by the SEC or otherwise consented to by the Administrative
Agent and the Required Lenders, (b) for purposes of calculation of the
Consolidated Total Leverage Ratio in connection with the issuance of
additional Subordinated Debt (including additional Senior Subordinated
Notes) pursuant to Section 8.1, such additional Subordinated Debt
shall be deemed to have been outstanding on the last day of the
applicable period and (c) for purposes of calculation of the
Consolidated Total Leverage Ratio pursuant to Section 3.3(b)(iii) in
connection with any Debt Transaction, the Funded Debt incurred in such
Debt Transaction shall be deemed to have been outstanding on the last
day of the applicable period
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Quoted Rate" means, with respect to a Quoted Rate Swingline
Loan, the fixed or floating percentage rate per annum, if any, offered
by the Swingline Lender and accepted by the Borrower in accordance
with the provisions hereof.
"Quoted Rate Swingline Loan" means a Swingline Loan bearing
interest at the Quoted Rate.
"Rate Determination Date" shall have the meaning assigned to
such term in the definition of "Applicable Percentage".
"Register" shall have the meaning given such term in Section
11.3(c).
"Registration Statement" means the Registration Statement of
the Borrower on Form S-1, initially filed with the SEC on May 22,
1998, as amended and supplemented through Post-Effective Amendment No.
1 thereto, filed with the SEC on July 29, 1998 and declared effective
by the SEC on July 29, 1998.
"Regulation D, O, T, U or X" means Regulation D, O, T, U or
X, respectively, of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a
portion thereof.
51
<PAGE> 22
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing into the environment (including the abandonment
or discarding of barrels, containers and other closed receptacles
containing any Materials of Environmental Concern).
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation.
"Required Lenders" means, at any time, Lenders having more
than fifty percent (50%) of the Commitments or, if the Commitments
have been terminated, Lenders having more than fifty percent (50%) of
the aggregate principal amount of the Obligations outstanding (taking
into account in each case Participation Interests or obligation to
participate therein); provided that the Commitments of, and
outstanding principal amount of Obligations (taking into account
Participation Interests therein) owing to, a Defaulting Lender shall
be excluded for purposes hereof in making a determination of Required
Lenders.
"Requirement of Law" means any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its material property is subject.
"Responsible Officer" means the Chief Executive Officer, the
Chief Financial Officer, the Controller, the Chief Operating Officer,
the Chief Accounting Officer and the Treasurer of the Borrower.
"Restricted Payment" by any Person means (i) any dividend or
other distribution, direct or indirect, on account of any shares of
any class of stock of such Person now or hereafter outstanding, except
(A) a dividend payable solely in shares of that class to the holders
of that class, (B) dividends and other distributions payable to a
Credit Party, and (C) dividends paid or payable to the shareholders of
certain of the Founding Companies in respect of tax liabilities
incurred under Subchapter S of the Internal Revenue Code on or before
the Closing Date (whether such dividends are paid on, before or after
the Closing Date), (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of stock of such Person now or
hereafter outstanding, and (iii) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any class of stock of such Person now or
hereafter outstanding.
"Revolving Commitment" means, with respect to each Revolving
Lender, the commitment of such Revolving Lender to make Revolving
Loans in an aggregate principal amount at any time outstanding of up
to such Revolving Lender's Revolving Commitment Percentage of the
Aggregate Revolving Committed Amount.
"Revolving Commitment Percentage" means, with respect to each
Revolving Lender, a fraction (expressed as a percentage) the numerator
of which is the Revolving Commitment of such Revolving Lender at such
time and the denominator of which is the Aggregate Revolving Committed
Amount at such time. The initial Revolving Commitment Percentages are
set out on Schedule 2.1.
"Revolving Committed Amount" means, with respect to each
Revolving Lender, the amount of each Revolving Lender's Revolving
Commitment, as specified in Schedule 2.1, as such amount may be
reduced from time to time in accordance with the provisions hereof.
"Revolving Lender" means each Lender holding Revolving
Commitments, as identified on Schedule 2.1, and its successors and
assigns.
"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Revolving Lenders
evidencing the Revolving Loans and the Swingline Loans in
substantially the form attached as Schedule 2.5-1, individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time.
52
<PAGE> 23
"Revolving Obligations" means, collectively, the Revolving
Loans, the LOC Obligations and the Swingline Loans.
"SEC" means the Securities and Exchange Commission and any
successor Governmental Authority.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of
such division in the business of rating securities.
"Securitization Transaction" means any financing transaction
or series of financing transactions that have been or may be entered
into by a member of the Consolidated Group pursuant to which such
member of the Consolidated Group may sell, convey or otherwise
transfer to (i) a Subsidiary or affiliate (a "Securitization
Subsidiary"), or (ii) any other Person, or may grant a security
interest in, any receivables or interests therein secured by
merchandise or services financed thereby (whether such receivables are
then existing or arising in the future) of such member of the
Consolidated Group, and any assets related thereto, including without
limitation, all security interests in merchandise or services financed
thereby, the proceeds of such receivables, and other assets which are
customarily sold or in respect of which security interests are
customarily granted in connection with securitization transactions
involving such assets.
"Security Agreement" means the Amended and Restated Security
Agreement dated as of the Closing Date given by the Credit Parties to
the Collateral Agent to secure the obligations of the Credit Parties
under the Credit Documents, as such Amended and Restated Security
Agreement may be amended and modified from time to time.
"Senior Funded Debt" means any Consolidated Funded Debt which
is not Subordinated Debt including, without limitation, the
Obligations, the principal amount of all purchase money Indebtedness
(including Capital Lease Obligations) and the principal amount of all
seller financing obligations.
"Senior Subordinated Note Indenture" means the Indenture
dated as of April 7, 1999 among the Borrower, the guarantors
identified therein and First Union National Bank, as Trustee.
"Senior Subordinated Notes" means those 11 1/2% Senior
Subordinated Notes of the Borrower due 2009 issued by the Borrower
pursuant to the Senior Subordinated Note Indenture.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Stock Incentive Plan" means the Borrower's 1998 Stock
Incentive Plan described in the Registration Statement.
"Subordinated Debt" means (i) the Indebtedness evidenced by
the Senior Subordinated Notes, and (ii) any other Indebtedness of the
Borrower or any Domestic Subsidiary which by its terms is expressly
subordinated in right of payment to the prior payment of the
obligations under the Credit Agreement and the other Credit Documents
on terms and conditions satisfactory to the Required Lenders.
"Subsidiary" means, as to any Person, (a) any corporation
more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through
Subsidiaries has more than 50% of the voting interests at any time.
Unless otherwise identified, "Subsidiary" shall mean a Subsidiary of
the Borrower.
"Support Obligations" means, with respect to any Person,
without duplication, any obligations of such Person (other than
endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to
guarantee any Indebtedness of any other Person in any manner, whether
53
<PAGE> 24
direct or indirect, and including without limitation any obligation,
whether or not contingent, (i) to purchase any such Indebtedness or
any Property constituting security therefor, (ii) to advance or
provide funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance
sheet condition of such other Person (including without limitation
keep well agreements, maintenance agreements, comfort letters or
similar agreements or arrangements) for the benefit of any holder of
Indebtedness of such other Person, (iii) to lease or purchase
Property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (iv) to otherwise assure or hold
harmless the holder of such Indebtedness against loss in respect
thereof, but specifically excluding guaranties or other assurances
with respect to any Credit Party's performance obligations under bids
or contracts made or entered into in the ordinary course of business
(including, without limitation, guaranties in favor of sureties under
performance bonds or the like and guaranties issued by Credit Parties
in substitution for or in support of such guaranties issued prior to
the Closing Date by the Founding Companies or their respective
stockholders and principals). The amount of any Support Obligation
hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of
which such Support Obligation is made.
"Swingline Commitment" means, with respect to the Swingline
Lender, the commitment of the Swingline Lender to make Swingline Loans
in an aggregate principal amount at any time outstanding up to the
Swingline Committed Amount and, with respect to the Revolving Lenders,
the commitment of each Revolving Lender to purchase participation
interests in the Swingline Loans up to such Revolving Lender's
Revolving Commitment Percentage.
"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.1(c).
"Swingline Lender" means Bank of America.
"Swingline Loan" means a swingline revolving loan made by the
Swingline Lender pursuant to the provisions of Section 2.1(c).
"Termination Date" means November 5, 2004.
"Tranche B Term Lender" means each Lender holding Tranche B
Term Loan Commitments, as identified on Schedule 2.1, and its
successors and assigns.
"Tranche B Term Loan" shall have the meaning assigned to such
term in Section 2.1(d).
"Tranche B Term Loan Commitment" means, with respect to each
Tranche B Term Lender, the commitment of such Tranche B Term Lender to
make a Tranche B Term Loan advance equal to such Tranche B Term
Lender's Tranche B Term Loan Committed Amount (and for purposes of
making determinations of Required Lenders after the Closing Date and
for purposes of making calculations referred to in Section 11.6(b),
the principal amount of the Tranche B Term Loan of such Tranche B Term
Lender).
"Tranche B Term Loan Commitment Percentage" means, for each
Tranche B Term Lender, a fraction (expressed as a percentage) the
numerator of which is the amount of the Tranche B Term Loan Committed
Amount of such Tranche B Term Lender and the denominator of which is
the aggregate Tranche B Term Loan Committed Amount of all the Tranche
B Term Lenders. The initial Tranche B Term Loan Commitment Percentages
are set out on Schedule 2.1.
"Tranche B Term Loan Committed Amount" means, with respect to
each Tranche B Term Lender, the amount of each Tranche B Term Lender's
Tranche B Term Loan Commitment as specified on Schedule 2.1, as such
amount may be reduced from time to time in accordance with the
provisions hereof.
"Tranche B Term Note" or "Tranche B Term Notes" means the
promissory notes of the Borrower in favor of each of the Tranche B
Term Lenders evidencing the Tranche B Term Loan in substantially the
form attached as Schedule 2.5-2, individually or collectively, as
appropriate, as such promissory notes may be amended, modified,
supplemented, extended or renewed from time to time.
54
<PAGE> 25
"Transaction" means (a) any acquisition of any Person or
Property by any member of the Consolidated Group and (b) any sale,
lease, transfer or other disposition of any Person or Property by any
member of the Consolidated Group.
"Voting Stock" means, with respect to any Person, capital
stock issued by such Person the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening
of such a contingency.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3 ACCOUNTING TERMS; CERTAIN CALCULATIONS
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise expressly
provided herein) be made by application of GAAP applied on a basis consistent
with the most recent annual or quarterly financial statements delivered
pursuant to Section 7.1; provided, however, if (a) the Borrower shall object to
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Administrative Agent or the Required Lenders shall
so object in writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis consistent with the
most recent financial statements delivered by the Borrower to the Lenders as to
which no such objection shall have been made.
(b) Notwithstanding anything to the contrary contained in subsection
(a) above, the parties hereto agree that the calculation of the financial
covenants set forth in Section 7.9 (including, without limitation, calculation
of the Consolidated Total Leverage Ratio for the purpose of the definition of
"Applicable Percentage" set forth in Section 1.1 and calculation of all such
financial covenants for the purposes of Sections 8.1, 8.3 and 8.4) shall be
performed on a Pro Forma Basis.
SECTION 2
CREDIT FACILITIES
2.1 COMMITMENTS.
(a) Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Revolving Lender severally agrees to make
revolving credit loans (the "Revolving Loans") to the Borrower in Dollars from
time to time in the amount of such Revolving Lender's Revolving Commitment
Percentage of such Revolving Loans for the purposes hereinafter set forth;
provided that (i) with regard to the Revolving Lenders collectively, the
aggregate principal amount of Revolving Obligations outstanding at any time
shall not exceed ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000) (as such
amount may be reduced from time to time in accordance with the provisions
hereof, the "Aggregate Revolving Committed Amount"), (ii) with regard to each
Revolving Lender individually, such Revolving Lender's Revolving Commitment
Percentage of Revolving Obligations outstanding at any time shall not exceed
such Revolving Lender's Revolving Committed Amount, and (iii) with regard to
the Lenders collectively, the aggregate principal amount of Obligations
outstanding at any time shall not exceed the Borrowing Base. Revolving Loans
may consist of Base Rate Loans or Eurodollar Loans, or a combination thereof,
as the Borrower may request. Amounts repaid on the Revolving Loans may be
reborrowed in accordance with the provisions hereof.
(b) Letter of Credit Commitment. During the Commitment Period, subject
to the terms and conditions hereof and of the LOC Documents, if any, and such
other terms and conditions which the Issuing Lender may reasonably require, the
Issuing Lender shall issue, and the Revolving Lenders shall participate in,
such Letters of Credit in Dollars as the Borrower may request for its own
account or for the account of another Credit Party as
55
<PAGE> 26
provided herein, in a form acceptable to the Issuing Lender, for the purposes
hereinafter set forth; provided that (i) the aggregate amount of LOC Obligations
at any time shall not exceed TWENTY MILLION DOLLARS ($20,000,000) (as such
amount may be reduced from time to time in accordance with the provisions
hereof, the "LOC Committed Amount"), (ii) with regard to the Revolving Lenders
collectively, the aggregate principal amount of Revolving Obligations
outstanding at any time shall not exceed the Aggregate Revolving Committed
Amount, (iii) with regard to each Revolving Lender individually, such Revolving
Lender's Revolving Commitment Percentage of Revolving Obligations outstanding at
any time shall not exceed such Revolving Lender's Revolving Committed Amount,
and (iv) with regard to the Lenders collectively, the aggregate principal amount
of Obligations outstanding at any time shall not exceed the Borrowing Base.
Letters of Credit issued hereunder shall not have an original expiry date more
than one year from the date of issuance or extension. If any Letter of Credit
issued hereunder shall have an expiry date, whether as originally issued or by
extension, extending beyond the Termination Date, the Borrower shall, on the
Termination Date, either (i) cause such Letter of Credit to be surrendered to
the Issuing Lender, (ii) provide to the Issuing Lender a back-to-back letter of
credit in respect thereof reasonably satisfactory to the Issuing Lender or (iii)
provide cash collateral to the Issuing Lender in an amount equal to the maximum
amount available to be drawn under such Letter of Credit. Each Letter of Credit
shall comply with the related LOC Documents. The issuance date of each Letter of
Credit shall be a Business Day.
(c) Swingline Commitment. During the Commitment Period, subject to the
terms and conditions hereof, the Swingline Lender agrees to make certain
revolving credit loans (the "Swingline Loans") to the Borrower in Dollars from
time to time for the purposes hereinafter set forth; provided that (i) the
aggregate principal amount of Swingline Loans outstanding at any time shall not
exceed TEN MILLION DOLLARS ($10,000,000) (as such amount may be reduced from
time to time in accordance with the provisions hereof, the "Swingline Committed
Amount"), (ii) with regard to the Revolving Lenders collectively, the aggregate
principal amount of Revolving Obligations outstanding at any time shall not
exceed the Aggregate Revolving Committed Amount, and (iii) with regard to the
Lenders collectively, the aggregate principal amount of Obligations outstanding
at any time shall not exceed the Borrowing Base. Swingline Loans may consist of
Base Rate Loans or Quoted Rate Swingline Loans, or a combination thereof, as
the Borrower may request. Amounts repaid on the Swingline Loans may be
reborrowed in accordance with the provisions hereof.
(d) Tranche B Term Loan Commitment. On the Closing Date, subject to
the terms and conditions hereof, each Tranche B Term Lender severally agrees to
make its Tranche B Term Loan Commitment Percentage of a term loan (the "Tranche
B Term Loan") to the Borrower in Dollars in the aggregate principal amount of
ONE HUNDRED MILLION DOLLARS ($100,000,000) in a single advance for the purposes
hereinafter set forth. Tranche B Term Loan may consist of Base Rate Loans or
Eurodollar Loans, or a combination thereof, as the Borrower may request.
Amounts repaid on the Tranche B Term Loan may not be reborrowed.
2.2 METHOD OF BORROWING.
(a) Notice of Request for Extensions of Credit. The Borrower shall
request an Extension of Credit hereunder by written notice (or telephonic
notice or email notice, in each case promptly confirmed in writing) as follows:
(i) Revolving Loans. In the case of Revolving Loans, by the
Borrower to the Administrative Agent not later than 11:00 A.M.
(Charlotte, North Carolina time) on the date of the requested
borrowing in the case of Base Rate Loans and on the third Business Day
prior to the date of the requested borrowing in the case of Eurodollar
Loans. Each such request for borrowing shall be irrevocable and shall
specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the borrowing shall
be comprised of Base Rate Loans, Eurodollar Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest Period(s)
therefor. A form of Notice of Borrowing is attached as Schedule
2.2(a)(i). The Administrative Agent shall give notice to each
Revolving Lender promptly upon receipt of each Notice of Borrowing
pursuant to this Section 2.2(a)(i), the contents thereof and each
Revolving Lender's share of any borrowing to be made pursuant thereto.
(ii) Letters of Credit. In the case of Letters of Credit, by
the Borrower to the Issuing Lender with a copy to the Administrative
Agent not later than 11:00 A.M. (Charlotte, North Carolina time) on
the
56
<PAGE> 27
third Business Day prior to the date of the requested issuance or
extension (or such shorter period as may be agreed by the Issuing
Lender). Each such request for issuance or extension of a Letter of
Credit shall be irrevocable and shall specify, among other things, (A)
that a Letter of Credit is requested, (B) the date of the requested
issuance or extension, (C) the type, amount, expiry date and terms on
which the Letter of Credit is to be issued or extended, and (D) the
beneficiary. A form of Notice of Request for Letter of Credit is
attached as Schedule 2.2(a)(ii).
(iii) Swingline Loans. In the case of Swingline Loans, by the
Borrower to the Swingline Lender with a copy to the Administrative
Agent not later than 11:00 A.M. (Charlotte, North Carolina time) on
the Business Day of the requested borrowing. Each such request for
borrowing shall be irrevocable and shall specify (A) that a Swingline
Loan is requested, (B) the date of the requested borrowing (which
shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) the interest rate option and maturity requested
therefor. A form of Notice of Borrowing is attached as Schedule
2.2(a)(i). Notwithstanding the foregoing, however, in the event that
an "auto borrow" or "zero balance" or similar arrangement shall then
be in place with the Swingline Lender, the Borrower shall request
Swingline Loans pursuant to such alternative notice arrangements, if
any, provided thereunder or in connection therewith. Each Swingline
Loan shall have a maturity date as the Borrower may request and the
Swingline Lender may agree.
(b) Minimum Amounts. Each Eurodollar Loan shall be in a minimum
principal amount of $1,000,000 and in integral multiples of $250,000 in excess
thereof. Each Base Rate Loan (other than any Base Rate Loan comprising a
Swingline Loan) shall be in a minimum principal amount of $1,000,000 (or, if
less, the remaining Aggregate Revolving Committed Amount) and in integral
multiples of $250,000 in excess thereof. Each Swingline Loan shall be in a
minimum principal amount of $1,000,000 (or, if less, the remaining Swingline
Committed Amount) and in integral multiples of $100,000 in excess thereof,
provided that in the event that an "auto borrow" or "zero balance" or similar
arrangement shall then be in place with the Swingline Lender, each Swingline
Loan advance shall be in such minimum amounts, if any, provided by such
agreement.
(c) Information Not Provided. If in connection with any such request
for a Loan, the Borrower shall fail to specify (i) an applicable Interest
Period in the case of a Eurodollar Loan, the Borrower shall be deemed to have
requested an Interest Period of one month or (ii) the type of Loan requested,
the Borrower shall be deemed to have requested a Base Rate Loan.
(d) Maximum Number of Eurodollar Loans. In connection with any request
for a Loan, Revolving Loans may be comprised of no more than five (5)
Eurodollar Loans outstanding at any time and the Tranche B Term Loan may be
comprised of no more than five (5) Eurodollar Loans outstanding at any time.
For purposes hereof, Eurodollar Loans with separate or different Interest
Periods will be considered as separate Eurodollar Loans even if their Interest
Periods expire on the same date.
(e) Increase in Tranche B Term Loan. Subject to the terms and
conditions set forth herein, the Borrower may at any time upon notice to the
Administrative Agent obtain from one or more commercial banks or financial
institutions reasonably acceptable to the Administrative Agent additional
Tranche B Term Loans in an aggregate principal amount not to exceed FIFTY
MILLION DOLLARS ($50,000,000); provided that
(i) any additional Tranche B Term Loans shall be in a minimum
aggregate principal amount of $5,000,000 and in integral multiples of
$1,000,000 in excess thereof;
(ii) the conditions to the making of Extensions of Credit set
forth in Section 5.2 shall be satisfied on the date any additional
Tranche B Term Loan is made to the Borrower;
(iii) the additional Tranche B Term Loan shall constitute
Senior Debt as defined in the Senior Subordinated Note Indenture;
(iv) no Lender shall be required to make any additional
Tranche B Term Loan without such Lender's consent;
57
<PAGE> 28
(v) all of the terms of any additional Tranche B Term Loan
shall be identical to those of the existing Tranche B Term Loans (and
the principal amount of any additional Tranche B Term Loan shall be
payable in quarterly installments in an amount equal to the sum of (A)
the percentage obtained by dividing the quarterly installment payment
of the existing Tranche B Term Loan then due and payable by the
outstanding principal amount of the existing Tranche B Term Loan
immediately prior to such payment, multiplied by (B) the outstanding
principal amount of such additional Tranche B Term Loan); and
(vi) each commercial bank and financial institution that
makes an additional Tranche B Term Loan to the Borrower shall become a
party to this Credit Agreement and a "Tranche B Term Lender" for all
purposes of this Credit Agreement pursuant to a written agreement
reasonably acceptable to the Administrative Agent. In connection with
the making of any such additional Tranche B Term Loans, Schedule 2.1
shall be revised to reflect the modified Tranche B Term Loan
Commitment Percentages, and the Borrower shall provide such corporate
resolutions, legal opinions, promissory notes and other items as may
be reasonably requested by the Administrative Agent in form, scope and
substance reasonably acceptable to the Administrative Agent.
(f) Increase in Revolving Commitments. Subject to the terms and
conditions set forth herein, the Borrower may at any time upon notice to the
Administrative Agent obtain from one or more commercial banks or financial
institutions reasonably acceptable to the Administrative Agent additional
Revolving Commitments in an aggregate principal amount not to exceed
TWENTY-FIVE MILLION DOLLARS ($25,000,000); provided that
(i) any additional Revolving Commitments shall be in a
minimum aggregate principal amount of $5,000,000 and in integral
multiples of $1,000,000 in excess thereof;
(ii) if any Revolving Loans are outstanding on the date any
additional Revolving Commitment is made, the Borrower shall make such
payments and adjustments on the Revolving Loans (including payment of
any break-funding amounts owing under Section 3.11) as necessary to
give effect to the revised Revolving Commitment Percentages;
(iii) the conditions to the making of Extensions of Credit
set forth in Section 5.2 shall be satisfied on the date any additional
Revolving Commitment is made;
(iv) no Lender shall be required to make any additional
Revolving Commitments without such Lender's consent; and
(v) each commercial bank and financial institution that makes
an additional Revolving Commitment shall become a party to this Credit
Agreement and a "Revolving Lender" for all purposes of this Credit
Agreement pursuant to a written agreement reasonably acceptable to the
Administrative Agent. In connection with the making of any such
additional Revolving Commitment, Schedule 2.1 shall be revised to
reflect the modified Revolving Commitment Percentages, and the
Borrower shall provide such corporate resolutions, legal opinions,
promissory notes and other items as may be reasonably requested by the
Administrative Agent in form, scope and substance reasonably
acceptable to the Administrative Agent.
2.3 INTEREST.
Subject to Section 3.1, the Loans hereunder shall bear interest at a
per annum rate, payable in arrears on each applicable Interest Payment Date (or
at such other times as may be specified herein), as follows:
(a) Revolving Loans.
(i) Base Rate Loans. During such periods as the Revolving
Loans shall be comprised of Base Rate Loans, the sum of the Base Rate
plus the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as the Revolving
Loans shall be comprised of Eurodollar Loans, the sum of the
Eurodollar Rate plus the Applicable Percentage.
58
<PAGE> 29
(b) Swingline Loans.
(i) Base Rate Loans. During such periods as the Swingline
Loans shall be comprised of Base Rate Loans, the sum of the Base Rate
plus the Applicable Percentage; and
(ii) Quoted Rate Swingline Loans. During such periods as the
Swingline Loans shall be comprised of Quoted Rate Swingline Loans, the
Quoted Rate.
(c) Tranche B Term Loan.
(i) Base Rate Loans. During such periods as the Tranche B Term
Loan shall be comprised of Base Rate Loans, the sum of the Base Rate
plus 1.75%; and
(ii) Eurodollar Loans. During such periods as the Tranche B
Term Loan shall be comprised of Eurodollar Loans, the sum of the
Eurodollar Rate plus 3.50%.
2.4 REPAYMENT.
(a) Revolving Loans. The principal amount of all Revolving Loans shall
be due and payable in full on the Termination Date.
(b) Swingline Loans. The principal amount of all Swingline Loans shall
be due and payable in full on the Termination Date.
(c) Tranche B Term Loan. The principal amount of the Tranche B Term
Loan shall be due and payable in twenty-six (26) consecutive quarterly
installments, as follows:
<TABLE>
<CAPTION>
Principal Principal
Amortization Amortization
Date Payment Date Payment
---- ----
<S> <C> <C> <C>
June 30, 2000 $250,000 September 30, 2003 $250,000
September 30, 2000 $250,000 December 31, 2003 $250,000
December 31, 2000 $250,000 March 31, 2004 $250,000
March 31, 2001 $250,000 June 30, 2004 $250,000
June 30, 2001 $250,000 September 30, 2004 $250,000
September 30, 2001 $250,000 December 31, 2004 $11,937,500
December 31, 2001 $250,000 March 31, 2005 $11,937,500
March 31, 2002 $250,000 June 30, 2005 $11,937,500
June 30, 2002 $250,000 September 30, 2005 $11,937,500
September 30, 2002 $250,000 December 31, 2005 $11,937,500
December 31, 2002 $250,000 March 31, 2006 $11,937,500
March 31, 2003 $250,000 June 30, 2006 $11,937,500
June 30, 2003 $250,000 September 30, 2006 $11,937,500
Total $100,000,000
</TABLE>
2.5 NOTES.
Revolving Loans and Swingline Loans shall be evidenced by the
Revolving Notes. The Tranche B Term Loan shall be evidenced by the Tranche B
Term Notes.
2.6 ADDITIONAL PROVISIONS RELATING TO LETTERS OF CREDIT.
59
<PAGE> 30
(a) Reports. The Issuing Lender will provide to the Administrative
Agent at least monthly, and more frequently upon request, a detailed summary
report on each Letter of Credit and the activity thereon, in form and substance
acceptable to the Administrative Agent. In addition, the Issuing Lender will
provide to the Administrative Agent for dissemination to the Revolving Lenders
at least quarterly, and more frequently upon request, a detailed summary report
on each Letter of Credit and the activity thereon, including, among other
things, the Credit Party for whose account the Letter of Credit is issued, the
beneficiary, the face amount, and the expiry date. The Issuing Lender will
provide copies of each Letter of Credit to the Administrative Agent and the
Revolving Lenders promptly upon request.
(b) Participation. Each Revolving Lender, with respect to the Existing
Letters of Credit, hereby purchases a participation interest in the Existing
Letters of Credit, and with respect to Letters of Credit issued on or after the
Closing Date, upon issuance of a Letter of Credit, shall be deemed to have
purchased without recourse a risk participation from the Issuing Lender in such
Letter of Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such Letter of
Credit (based on its respective Revolving Commitment Percentage) and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and not
as surety, and be obligated to pay to the Issuing Lender therefor and discharge
when due, its pro rata share of the obligations arising under such Letter of
Credit. Without limiting the scope and nature of each Revolving Lender's
participation in any Letter of Credit, to the extent that the Issuing Lender
has not been reimbursed as required hereunder or under any such Letter of
Credit, each Revolving Lender shall pay to the Issuing Lender its pro rata
share of such unreimbursed drawing in same day funds on the day of notification
by the Issuing Lender of an unreimbursed drawing pursuant to the provisions of
subsection (c) hereof. The obligation of each Revolving Lender to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not be
affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.
(c) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender that it intends to
otherwise reimburse the Issuing Lender for such drawing, the Borrower shall be
deemed to have requested that the Revolving Lenders make a Revolving Loan in
the amount of the drawing as provided in subsection (d) below on the related
Letter of Credit, the proceeds of which will be used to satisfy the related
reimbursement obligations. The Borrower promises to reimburse the Issuing
Lender on the day of drawing under any Letter of Credit (either with the
proceeds of a Revolving Loan obtained hereunder or otherwise) in same day
funds. If the Borrower shall fail to reimburse the Issuing Lender as provided
hereinabove, the unreimbursed amount of such drawing shall bear interest at a
per annum rate equal to the Base Rate plus the sum of (i) the Applicable
Percentage and (ii) two percent (2%). The Borrower's reimbursement obligations
hereunder shall be absolute and unconditional under all circumstances
irrespective of any rights of setoff, counterclaim or defense to payment the
Borrower may claim or have against the Issuing Lender, the Administrative
Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any
other Person, including without limitation any defense based on any failure of
the Borrower or any other Credit Party to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of Credit. The
Issuing Lender will promptly notify the Revolving Lenders of the amount of any
unreimbursed drawing and each Revolving Lender shall promptly pay to the
Administrative Agent for the account of the Issuing Lender in Dollars and in
immediately available funds, the amount of such Revolving Lender's Revolving
Commitment Percentage of such unreimbursed drawing. Such payment shall be made
on the day such notice is received by such Revolving Lender from the Issuing
Lender if such notice is received at or before 2:00 P.M. (Charlotte, North
Carolina time) otherwise such payment shall be made at or before 12:00 Noon
(Charlotte, North Carolina time) on the Business Day next succeeding the day
such notice is received. If such Revolving Lender does not pay such amount to
the Issuing Lender in full upon such request, such Revolving Lender shall, on
demand, pay to the Administrative Agent for the account of the Issuing Lender
interest on the unpaid amount during the period from the date of such drawing
until such Revolving Lender pays such amount to the Issuing Lender in full at a
rate per annum equal to, if paid within two (2) Business Days of the date that
such Revolving Lender is required to make payments of such amount pursuant to
the preceding sentence, the Federal Funds Rate and thereafter at a rate equal
to the Base Rate. Each Revolving Lender's obligation to make such payment to
the Issuing Lender, and the right of the Issuing Lender to receive the same,
shall be absolute and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this Credit Agreement or
the Commitments hereunder, the existence of a Default or Event of Default or
the acceleration of the obligations of the Borrower hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a Revolving Lender to
the Issuing Lender, such Revolving Lender shall, automatically and
60
<PAGE> 31
without any further action on the part of the Issuing Lender or such Revolving
Lender, acquire a participation in an amount equal to such payment (excluding
the portion of such payment constituting interest owing to the Issuing Lender)
in the related unreimbursed drawing portion of the LOC Obligation and in the
interest thereon and in the related LOC Documents, and shall have a claim
against the Borrower with respect thereto.
(d) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan
advance to reimburse a drawing under a Letter of Credit, the Administrative
Agent shall give notice to the Revolving Lenders that a Revolving Loan has been
requested or deemed requested by the Borrower to be made in connection with a
drawing under a Letter of Credit, in which case a Revolving Loan advance
comprised of Base Rate Loans (or Eurodollar Loans to the extent the Borrower
has complied with the procedures of Section 2.2 with respect thereto) shall be
immediately made to the Borrower by all Revolving Lenders (notwithstanding any
termination of the Commitments pursuant to Section 9.2) pro rata based on the
respective Revolving Commitment Percentages (determined before giving effect to
any termination of the Commitments pursuant to Section 9.2) and the proceeds
thereof shall be paid directly to the Issuing Lender for application to the
respective LOC Obligations. Each Revolving Lender hereby irrevocably agrees to
make its pro rata share of each such Revolving Loan immediately upon any such
request or deemed request in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (i) the amount of such
borrowing may not comply with the minimum amount for advances of Revolving
Loans otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or an Event of Default
then exists, (iv) failure for any such request or deemed request for Revolving
Loan to be made by the time otherwise required hereunder, (v) whether the date
of such borrowing is a date on which Revolving Loans are otherwise permitted to
be made hereunder or (vi) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the event
that any Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower or any
Credit Party), then each Revolving Lender hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) from the Issuing Lender such participation in the
outstanding LOC Obligations as shall be necessary to cause each Revolving
Lender to share in such LOC Obligations ratably (based upon the respective
Revolving Commitment Percentages (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2)), provided that in the
event such payment is not made by a Revolving Lender on the day of drawing,
such Revolving Lender shall pay in addition to the Issuing Lender interest on
the amount of its unfunded Participation Interest at a rate equal to, if paid
within two (2) Business Days of the date of drawing, the Federal Funds Rate,
and thereafter at the Base Rate for Revolving Loans.
(e) Designation of other Credit Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.2(a)(ii), a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit is
issued for the account of a Credit Party other than the Borrower, provided that
notwithstanding such statement, the Borrower shall be the actual account party
for all purposes of this Credit Agreement for such Letter of Credit and such
statement shall not affect the Borrower's reimbursement obligations hereunder
with respect to such Letter of Credit.
(f) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits (the "UCP") or the International Standby Practices 1998
(the "ISP98"), in either case as published as of the date of issue by the
International Chamber of Commerce, in which case the UCP or the ISP98, as
applicable, may be incorporated therein and deemed in all respects to be a part
thereof.
(h) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section
2.6, the Borrower hereby agrees to protect, indemnify, pay and save
the Issuing Lender harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) that the Issuing Lender may
incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit or (B) the failure of the Issuing
Lender to honor a drawing under a Letter of Credit as a result of any
act
61
<PAGE> 32
or omission, whether rightful or wrongful, of any present or future de
jure or de facto government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Borrower and the Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or misuse of
any Letter of Credit by the beneficiary thereof. The Issuing Lender
shall not be responsible: (A) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any
Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (B)
for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (C)
for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (D) for any loss or delay
in the transmission or otherwise of any document required in order to
make a drawing under a Letter of Credit or of the proceeds thereof;
and (E) for any consequences arising from causes beyond the control of
the Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the vesting
of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Lender, under or in connection with any Letter
of Credit or the related certificates, if taken or omitted in good
faith, shall not put the Issuing Lender under any resulting liability
to the Borrower or any other Credit Party. It is the intention of the
parties that this Credit Agreement shall be construed and applied to
protect and indemnify the Issuing Lender against any and all risks
involved in the issuance of the Letters of Credit, all of which risks
are hereby assumed by the Borrower (on behalf of itself and each of
the other Credit Parties), including, without limitation, any and all
Government Acts. The Issuing Lender shall not, in any way, be liable
for any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts
or any other cause beyond the control of the Issuing Lender.
(iv) Nothing in this subsection (h) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (h) shall
survive the termination of this Credit Agreement. No act or omissions
of any current or prior beneficiary of a Letter of Credit shall in any
way affect or impair the rights of the Issuing Lender to enforce any
right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in
this subsection (h), the Borrower shall have no obligation to
indemnify the Issuing Lender in respect of any liability incurred by
the Issuing Lender (A) arising out of the gross negligence or willful
misconduct of the Issuing Lender, as determined by a court of
competent jurisdiction, or (B) caused by the Issuing Lender's failure
to pay under any Letter of Credit after presentation to it of a
request strictly complying with the terms and conditions of such
Letter of Credit, as determined by a court of competent jurisdiction,
unless such payment is prohibited by any law, regulation, court order
or decree.
(i) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the Lenders are
only those expressly set forth in this Credit Agreement and that the Issuing
Lender shall be entitled to assume that the conditions precedent set forth in
Section 5.2 have been satisfied unless it shall have acquired actual knowledge
that any such condition precedent has not been satisfied; provided, however,
that nothing set forth in this Section 2.6 shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section 2.6 in
the event that it is determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit constituted gross negligence or
willful misconduct on the part of the Issuing Lender.
(j) Conflict with LOC Documents. Solely as among the parties hereto,
in the event of any conflict between this Credit Agreement and any LOC Document
(including any letter of credit application), this Credit Agreement shall
control.
62
<PAGE> 33
2.7 ADDITIONAL PROVISIONS RELATING TO SWINGLINE LOANS.
The Swingline Lender may, at any time, in its sole discretion, by
written notice to the Borrower and the Revolving Lenders, demand repayment of
its Swingline Loans by way of a Revolving Loan advance, in which case the
Borrower shall be deemed to have requested a Revolving Loan advance comprised
solely of Base Rate Loans in the amount of such Swingline Loans; provided,
however, that any such demand shall be deemed to have been given one Business
Day prior to the Termination Date and on the date of the occurrence of any
Event of Default described in Section 9.1 and upon acceleration of the
indebtedness hereunder and the exercise of remedies in accordance with the
provisions of Section 9.2. Each Revolving Lender hereby irrevocably agrees to
make its Revolving Commitment Percentage of each such Revolving Loan in the
amount, in the manner and on the date specified in the preceding sentence
notwithstanding (i) the amount of such borrowing may not comply with the
minimum amount for advances of Revolving Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 5.2 are then satisfied, (iii)
whether a Default or an Event of Default then exists, (iv) failure of any such
request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (v) whether the date of such borrowing is a date on which
Revolving Loans are otherwise permitted to be made hereunder or (vi) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any other Credit Party), then
each Revolving Lender hereby agrees that it shall forthwith purchase (as of the
date such borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such Participation Interests in the
outstanding Swingline Loans as shall be necessary to cause each such Revolving
Lender to share in such Swingline Loans ratably based upon its Revolving
Commitment Percentage (determined before giving effect to any termination of
the Commitments pursuant to Section 3.4), provided that (A) all interest
payable on the Swingline Loans shall be for the account of the Swingline Lender
until the date as of which the respective Participation Interest is funded and
(B) at the time any purchase of Participation Interests pursuant to this
sentence is actually made, the purchasing Revolving Lender shall be required to
pay to the Swingline Lender, to the extent not paid to the Swingline Lender by
the Borrower in accordance with the terms of Section 2.4(b), interest on the
principal amount of Participation Interests purchased for each day from and
including the day upon which such borrowing would otherwise have occurred to
but excluding the date of payment for such Participation Interests, at the rate
equal to the Federal Funds Rate.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 DEFAULT RATE.
Upon the occurrence, and during the continuance, of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 2% greater than the
rate which would otherwise be applicable (or if no rate is applicable, whether
in respect of interest, fees or other amounts, then 2% greater than the Base
Rate plus the Applicable Percentage).
3.2 EXTENSION AND CONVERSION.
Subject to the terms of Section 5.2, the Borrower shall have the
option, on any Business Day, to extend existing Eurodollar Loans into a
subsequent permissible Interest Period or to convert Base Rate Loans into
Eurodollar Loans; provided, however, that (i) except as provided in Section
3.8, Eurodollar Loans may be converted into Base Rate Loans only on the last
day of the Interest Period applicable thereto, (ii) Eurodollar Loans may be
extended, and Base Rate Loans may be converted into Eurodollar Loans, only if
no Default or Event of Default is in existence on the date of extension or
conversion, (iii) Loans extended as, or converted into, Eurodollar Loans shall
be subject to the terms of the definition of "Interest Period" and shall be in
such minimum amounts as provided in Section 2.2(b), and (iv) any request for
extension or conversion of a Eurodollar Loan which shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of one
month. Each such extension or conversion shall be effected by the Borrower by
giving a Notice of Extension/Conversion (or telephonic notice promptly
confirmed in writing) to the Administrative Agent prior to 11:00 A.M.
(Charlotte, North Carolina time) on the Business Day of, in the case of the
conversion of a Eurodollar Loan into a Base Rate Loan, and on the third
Business Day prior to, in the case of the extension of a
63
<PAGE> 34
Eurodollar Loan as, or conversion of a Base Rate Loan into, a Eurodollar Loan,
the date of the proposed extension or conversion, specifying the date of the
proposed extension or conversion, the Loans to be so extended or converted, the
types of Loans into which such Loans are to be converted and, if appropriate,
the applicable Interest Periods with respect thereto. Each request for extension
of a Eurodollar Loan or conversion of a Base Rate Loan into a Eurodollar Loan
shall be irrevocable and shall constitute a representation and warranty by the
Borrower of the matters specified in Section 5.2. In the event the Borrower
fails to request extension or conversion of any Eurodollar Loan in accordance
with this Section 3.2, or any such conversion or extension is not permitted or
required by this Section 3.2, then such Eurodollar Loan shall be automatically
converted into a Base Rate Loan at the end of the Interest Period applicable
thereto. The Administrative Agent shall give each Lender notice as promptly as
practicable of any such proposed extension or conversion affecting any Loan.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Loans may be prepaid in whole or in
part without premium or penalty; provided that (i) Eurodollar Loans may be
prepaid only upon three (3) Business Days' prior written notice to the
Administrative Agent and must be accompanied by payment of any amounts owing
under Section 3.11, and (ii) partial prepayments shall be (A) in the case of
Eurodollar Loans, in a minimum aggregate principal amount of $2,500,000 and
integral multiples of $500,000 in excess thereof, (B) in the case of Base Rate
Loans (other than Swingline Loans), in a minimum aggregate principal amount of
$1,000,000 and integral multiples of $100,000 in excess thereof, and (C) in the
case of Swingline Loans, in a minimum aggregate principal amount of $1,000,000
and integral multiples of $100,000 in excess thereof, provided that in the
event that an "auto-borrow" or "zero balance" or other similar arrangement
shall then be in place with the Swingline Lender, Swingline Loans shall be
prepaid in such minimum amounts, if any, provided by such agreement.
(b) Mandatory Prepayments.
(i) Commitments. If at any time, (i) the aggregate principal
amount of Revolving Obligations shall exceed the Aggregate Revolving
Committed Amount, (ii) the aggregate amount of LOC Obligations shall
exceed the LOC Committed Amount, (iii) the aggregate principal amount
of Swingline Loans shall exceed the Swingline Committed Amount or (iv)
the aggregate amount of Obligations shall exceed the Borrowing Base,
the Borrower shall immediately make payment on the Revolving Loans,
the Swingline Loans and/or the Tranche B Term Loan, and/or to a cash
collateral account in respect of the LOC Obligations, in an amount
equal to the difference.
(ii) Divestitures. The Loans shall be prepaid as hereafter
provided in an amount equal to one hundred percent (100%) of the Net
Cash Proceeds received from any Divestiture to the extent (A) such Net
Cash Proceeds are not reinvested in the same or similar Property
within twelve (12) months of the date of such Divestiture, and (B) the
aggregate amount of such Net Cash Proceeds not reinvested in
accordance with the foregoing clause (A) shall exceed $5,000,000 in
any fiscal year.
(iii) Debt Transactions. The Loans shall be prepaid as
hereafter provided in an amount equal to one hundred percent (100%) of
the Net Cash Proceeds received from any Debt Transaction, provided,
however, that if the Consolidated Total Leverage Ratio on a Pro Forma
Basis for the period of four consecutive fiscal quarters immediately
preceding the date of the Debt Transaction is less than 3.0:1.0, the
Loans shall be prepaid as hereafter provided in an amount equal to
seventy-five percent (75%) of the Net Cash Proceeds received from such
Debt Transaction.
(iv) Equity Transactions. The Loans shall be prepaid as
hereafter provided in an amount equal to fifty percent (50%) of the
Net Cash Proceeds received from any Equity Transaction.
(c) Application.
(i) Voluntary Prepayments. Voluntary prepayments on the
Revolving Obligations shall be applied as specified by the Borrower.
Voluntary prepayments on the Tranche B Term Loan shall be applied to
the principal amortization payments thereof in
64
<PAGE> 35
inverse order of maturity. Within the parameters of the applications
set forth above, voluntary prepayments shall be applied first to Base
Rate Loans, then to Eurodollar Loans in direct order of Interest Period
maturities, then to Quoted Rate Swingline Loans in direct order of
Interest Period maturities and then to a cash collateral account to
secure LOC Obligations.
(ii) Mandatory Prepayments.
(A) Prepayments in respect of Divestitures.
Mandatory prepayments made under this Section 3.3 in respect
of Divestitures shall be applied ratably among the Tranche B
Term Loan (to the principal amortization installments thereof
in inverse order of maturity) and the Revolving Obligations
(with a corresponding permanent reduction in the Revolving
Committed Amount in an amount equal to all amounts applied to
the Revolving Obligations pursuant to this Section
3.3(c)(ii)(A)). Within the parameters of the applications set
forth above, mandatory prepayments shall be applied first to
Base Rate Loans, then to Eurodollar Loans in direct order of
Interest Period maturities, then to Quoted Rate Swingline
Loans in direct order of Interest Period maturities and then
to a cash collateral account to secure LOC Obligations.
(B) Prepayments in respect of Debt Transactions or
Equity Transactions. Mandatory prepayments made under this
Section 3.3 in respect of Debt Transactions and Equity
Transactions shall be applied first to the Tranche B Term
Loan (to the principal amortization installments thereof in
inverse order of maturity) until repaid in full and,
thereafter, to the Revolving Obligations (without a
corresponding permanent reduction in the Aggregate Revolving
Committed Amount). Within the parameters of the applications
set forth above, mandatory prepayments in respect of Debt
Transactions and Equity Transactions shall be applied first
to Base Rate Loans, then to Eurodollar Loans in direct order
of Interest Period maturities, then to Quoted Rate Swingline
Loans in direct order of Interest Period maturities and then
to a cash collateral account to secure LOC Obligations.
(iii) Availability. Amounts prepaid on the Revolving
Obligations may, subject to the terms and conditions hereof, be
reborrowed. Amounts prepaid on the Tranche B Term Loan may not be
reborrowed.
3.4 TERMINATION AND REDUCTION OF COMMITMENTS
(a) Voluntary Reductions. The Commitments may be terminated or
permanently reduced in whole or in part upon three (3) Business Days' prior
written notice by the Borrower to the Administrative Agent, provided that (i)
after giving effect to any voluntary reduction in the Revolving Commitments,
the aggregate amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount, as reduced, and (ii) partial reductions shall be in
a minimum principal amount of $1,000,000 and in integral multiples of $100,000
in excess thereof.
(b) Termination. Unless terminated earlier in accordance with the
terms of this Agreement, the Commitments hereunder shall terminate on the
Termination Date.
65
<PAGE> 36
3.5 FEES.
(a) Commitment Fees.
(i) Revolving Commitments. In consideration of the Revolving
Commitments, the Borrower agrees to pay to the Administrative Agent
for the ratable benefit of the Lenders a commitment fee (the
"Commitment Fee") equal to the Applicable Percentage per annum on the
average daily unused amount of the Aggregate Revolving Committed
Amount for the applicable period. The Commitment Fee shall be payable
quarterly in arrears on the 15th day following the last day of each
calendar quarter for the immediately preceding calendar quarter (or
portion thereof) beginning with the first such date to occur after the
Closing Date (as well as on the Termination Date). For purposes of
computation of the Commitment Fee, (A) Swingline Loans shall not be
counted toward or considered usage of the Aggregate Revolving
Committed Amount and (B) LOC Obligations shall be counted toward and
considered usage of the Aggregate Revolving Committed Amount.
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the LOC
Commitment hereunder, the Borrower agrees to pay to the Administrative
Agent for the ratable benefit of the Lenders a fee (the "Letter of
Credit Fee") equal to the Applicable Percentage per annum on the
average daily maximum amount available to be drawn under Letters of
Credit from the date of issuance to the date of expiration. The Letter
of Credit Fee shall be payable quarterly in arrears on the 15th day
following the last day of each calendar quarter for the immediately
preceding calendar quarter (or portion thereof) beginning with the
first such date to occur after the Closing Date (as well as on the
Termination Date).
(ii) Issuing Lender Fees. In addition to the Letter of Credit
Fee, the Borrower agrees to pay to the Issuing Lender for its own
account without sharing by the other Lenders a fronting and
negotiation fee of one-eighth of one percent (0.125%) per annum on the
average daily maximum amount available to be drawn under Letters of
Credit issued by it from the date of issuance to the date of
expiration (the "Issuing Lender Fees").
(c) Administrative Agent's Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, the annual administrative fee and
such other fees, if any, referred to in the Administrative Agent's Fee Letter
(collectively, the "Administrative Agent's Fees").
3.6 CAPITAL ADEQUACY.
If any Lender has reasonably determined, after the date hereof, that
the adoption or the becoming effective of, or any change in, or any change by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof in the interpretation or
administration of, any applicable law, rule or regulation regarding capital
adequacy, or compliance by such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or assets as a consequence
of its commitments or obligations hereunder to a level below that which such
Lender could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy), then, subject to the provisions of Section 3.12, the
Borrower shall be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction, to the extent
related to Extensions of Credit made to the Borrower.
3.7 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined (which determination shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate for such Interest Period, the Administrative Agent shall
give telecopy or telephonic notice thereof to the Borrower and the Lenders as
soon as practicable thereafter (which notice shall be withdrawn by the
Administrative Agent whenever such circumstances no longer exist). If such
notice is given (a) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as Base Rate Loans and (b) any Loans that
were to have been converted on the first day of such
66
<PAGE> 37
Interest Period to or continued as Eurodollar Loans shall be converted to or
continued as Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Base Rate Loans to
Eurodollar Loans.
3.8 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Credit Agreement,
(a) such Lender shall promptly give written notice of such circumstances to the
Borrower and the Administrative Agent (which notice shall be withdrawn by such
Lender whenever such circumstances no longer exist), (b) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert a Base Rate Loan to Eurodollar Loans shall forthwith be canceled
and, until such time as it shall no longer be unlawful for such Lender to make
or maintain Eurodollar Loans, such Lender shall then have a commitment only to
make a Base Rate Loan when a Eurodollar Loan is requested and (c) such Lender's
Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of then current Interest Period with respect thereto,
the Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to Section 3.11 to the extent related to Eurodollar Loans made to the
Borrower
3.9 REQUIREMENTS OF LAW.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable
to any Lender, or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority, in each case made subsequent to the Closing Date (or,
if later, the date on which such Lender becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurodollar Loan
or its obligation to make Eurodollar Loans, or change the basis of
taxation of payments to such Lender in respect thereof (except for (i)
Taxes covered by Section 3.10 (including Taxes imposed solely by
reason of any failure of such Lender to comply with its obligations
under Section 3.10(d)) and (ii) changes in taxes measured by or
imposed upon the overall net income, or franchise tax (imposed in lieu
of such net income tax), of such Lender or its applicable lending
office, branch, or any affiliate thereof));
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(c) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, subject to the provisions of Section 3.12, the
Borrower shall be obligated to promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable, to the extent related to Extensions of Credit
made to the Borrower, provided that, in any such case, the Borrower may elect
to convert the Eurodollar Loans made by such Lender hereunder to Base Rate
Loans by giving the Administrative Agent at least one Business Day's notice of
such election, in which case the Borrower shall promptly pay to such Lender,
upon demand, without duplication, such amounts, if any, as may be required
pursuant to Section 3.11 to the extent related to Eurodollar Loans made to the
Borrower. Each Lender agrees that, as promptly as practicable after it becomes
aware of any circumstances of the type referred to in paragraphs (a) through
(c) above which would result in any such increased cost or reduced amount
receivable, the affected Lender shall, to the extent not inconsistent with such
Lender's internal policies of general application and not materially
disadvantageous to such Lender in its discretion, designate a different lending
office for the making of Loans or otherwise use reasonable commercial efforts
to minimize the amounts payable to it by the Borrower pursuant to this Section
3.9. This covenant shall survive the termination of this Credit Agreement and
the payment of the Loans and all other amounts payable hereunder.
67
<PAGE> 38
3.10 TAXES.
(a) Any and all payments by any Credit Party to or for the account of
any Lender or the Administrative Agent hereunder or under any other Credit
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes imposed on its income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender (or its applicable lending office) or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred
to as "Taxes"). If any Credit Party shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable under this Credit
Agreement or any other Credit Document to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section 3.10) such Lender or
the Administrative Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Credit Party shall make
such deductions and withholdings, (iii) such Credit Party shall pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law, and (iv) such Credit Party shall
furnish to the Administrative Agent, in each case at its address referred to in
Section 11.1, the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Credit
Agreement or any other Credit Document or from the execution or delivery of, or
otherwise with respect to, this Credit Agreement or any other Credit Document
(hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.10) paid by such Lender or
the Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender that is not a United States person under Section
7701(a)(30) of the Internal Revenue Code (a "Non-US Lender"), on or prior to
the date of its execution and delivery of this Credit Agreement in the case of
each Lender listed on the signature pages hereof and on or prior to the date on
which it becomes a Lender in the case of each other Lender, and from time to
time thereafter if requested in writing by the Borrower or the Administrative
Agent (but only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Administrative Agent with (i) Internal Revenue
Service Form W-8 BEN or W-8 ECI, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces to zero the rate of withholding tax on payments of interest
or certifying that the income receivable pursuant to this Credit Agreement is
effectively connected with the conduct of a trade or business in the United
States, or (ii) Internal Revenue Service Form W-8 BEN (or any successor form
thereto), including all appropriate attachments, documenting the status of the
Lender as a Non-US Lender, and a certificate to the effect that such Lender (A)
is not a bank, as such term is used in section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended (the "Code"), or the Credit Agreement is not,
with respect to the undersigned, a loan agreement entered into in the ordinary
course of its trade or business, within the meaning of such section, (B) is not
a 10 percent shareholder of the Borrower within the meaning of section
871(h)(3) or 881(c)(3)(B) of the Code, and (C) is not a controlled foreign
corporation that is related to the Borrower within the meaning of section
881(c)(3)(C) of the Code, or (iii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
and/or (iv) any other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from tax on payments pursuant to this Credit Agreement or any of the other
Credit Documents.
(e) For any period with respect to which a Lender has failed to
provide the Borrower and the Administrative Agent with the appropriate form
pursuant to Section 3.10(d) (unless such failure is due to a change in treaty,
law, or regulation occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be entitled to
indemnification under Section 3.10(a) or 3.10(b) with respect to Taxes imposed
68
<PAGE> 39
by the United States; provided, however, that should a Lender, which is
otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(f) If any Credit Party is required to pay additional amounts to or
for the account of any Lender pursuant to this Section 3.10, then, unless a
Commitment Termination Event shall have occurred, such Lender will agree to use
reasonable efforts to change the jurisdiction of its applicable lending office
so as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes,
the applicable Credit Party shall furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Credit Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 3.10 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
3.11 INDEMNITY.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur (other
than through such Lender's gross negligence or willful misconduct) as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of a Eurodollar Loan after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making of a prepayment of a Eurodollar Loan on
a day which is not the last day of the Interest Period for such Eurodollar
Loan. With respect to any Eurodollar Loan, such indemnification may be
calculated, in lieu of any other method, based on an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of the Interest Period for such Eurodollar Loan (or,
in the case of a failure to borrow, convert or continue, the Interest Period of
such Eurodollar Loan that would have commenced on the date of such failure) in
each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Percentage included therein, if any) over
(ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market. The covenants of the Borrower set forth in this Section 3.11 shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.12 CERTAIN LIMITATIONS.
The provisions of Sections 3.6, 3.9, 3.10 and 3.11 shall be subject to
the following:
(a) Each Lender that desires compensation or indemnification under
Sections 3.6, 3.9 or 3.11 shall notify the Borrower through the Administrative
Agent of any event occurring after the Closing Date entitling such Lender to
compensation or indemnification under any of such Sections as promptly as
practicable, but in any event within 90 days after the occurrence of the event
giving rise thereto; provided that (i) if any such Lender fails to give such
notice within 90 days after the occurrence of such an event, such Lender shall
only be entitled to compensation or indemnification in respect of such event
accruing under Sections 3.6, 3.9 or 3.11 with respect to the period from and
after the date 90 days prior to the date that such Lender does give notice.
(b) Any notice given by a Lender pursuant to subsection (a) above
shall certify (i) that one of the events described in Sections 3.6, 3.9 or 3.11
has occurred, describing in reasonable detail the nature of such event, (ii) as
to the increased cost, reduced amount receivable or loss or expense resulting
from such event and (iii) as to the additional amount demanded by such Lender,
attaching a reasonably detailed explanation of the calculation
69
<PAGE> 40
thereof. Such a certificate as to any compensation or indemnification payable
pursuant to Sections 3.6, 3.9 or 3.11, submitted by such Lender through the
Administrative Agent to the Borrower, shall be conclusive and binding on the
parties hereto in the absence of manifest error.
(c) If any Lender requests compensation or indemnification from the
Borrower under Sections 3.6, 3.9 or 3.10, the Borrower may, at its option,
within fifteen (15) days after receipt by the Borrower of written demand from
the affected Lender for payment of such compensation or indemnification, notify
the Administrative Agent and such affected Lender of its intention to replace
the affected Lender. So long as no Event of Default shall have occurred and be
continuing, the Borrower may obtain, at the Borrower's expense, a replacement
Lender for the affected Lender. If the Borrower obtains a replacement Lender
within ninety (90) days following notice of its intention to do so, the
affected Lender must sell and assign its ratable share of the Obligations and
its Commitments to such replacement Lender pursuant to Section 11.3(b) (without
giving effect to any requirement therein that the Administrative Agent consent
thereto), for an amount equal to the principal balance of all Loans held by the
affected Lender and all accrued interest and Fees with respect thereto through
the date of such sale, provided that the Borrower shall have paid to such
affected Lender the compensation or indemnification that it is entitled to
receive under Sections 3.6, 3.9 or 3.10, through the date of such sale and
assignment. Notwithstanding the foregoing, the Borrower shall not have the
right to obtain a replacement Lender if the affected Lender rescinds its demand
for such compensation or indemnification within fifteen (15) days following its
receipt of the Borrower's notice of intention to replace such affected Lender.
Additionally, if the Borrower gives a notice to the Administrative Agent and an
affected Lender of its intention to replace such affected Lender and does not
so replace such affected Lender within ninety (90) days thereafter, the
Borrower's rights under this Section 3.12(c) shall terminate and the Borrower
shall promptly pay all compensation or indemnification demanded by such
affected Lender pursuant to Sections 3.6, 3.9 or 3.10.
3.13 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Obligations. Each Revolving Loan advance, each payment or
prepayment of principal of any Revolving Loan, each payment of interest on any
Revolving Loan, each payment on or in respect of the LOC Obligations and each
payment of interest thereon, each payment of the Commitment Fee, each payment
of the Letter of Credit Fee, each reduction of Aggregate Revolving Committed
Amount, and each conversion or extension of Revolving Loan shall be allocated
pro rata among the Revolving Lenders according to their respective Revolving
Commitment Percentages. The Tranche B Term Loan advance, each payment or
prepayment of principal of the Tranche B Term Loan, each payment of interest on
the Tranche B Term Loan, and each conversion or extension of Tranche B Term
Loan shall be allocated pro rata among the Term Lenders according to their
respective Tranche B Term Loan Commitment Percentages.
(b) Advances. No Lender shall be responsible for the failure or delay
by any other Lender in its obligation to make its ratable share of a borrowing
hereunder; provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its ratable share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by such Lender within the time period specified
therefor hereunder, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the Federal Funds
Rate for a period of two (2) Business Days, and thereafter at the Base Rate,
for the period until such Lender makes such amount immediately available to the
Administrative Agent. If such Lender does not pay such amounts to the
Administrative Agent forthwith upon demand, the Administrative Agent may notify
the Borrower and request the Borrower to immediately pay such amount to the
Administrative Agent with interest at the rate applicable thereto. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this subsection shall be conclusive in the absence of
manifest error.
70
<PAGE> 41
3.14 SHARING OF PAYMENTS.
(a) Lenders. The Lenders agree among themselves that, in the
event that any Lender shall obtain payment in respect of any Loan, LOC
Obligation or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising from, or in lieu of, such
secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in excess
of its pro rata share of such payment as provided for in this Credit Agreement,
such Lender shall promptly purchase from the other Lenders a participation in
such Loan, LOC Obligation and other obligations in such amounts, and make such
other adjustments from time to time, as shall be equitable to the end that all
Lenders share such payment in accordance with their respective ratable shares
as provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to any such Lender obtained by such Lender through
the exercise of a right of setoff, banker's lien, counterclaim or other event
as aforesaid shall be rescinded or must otherwise be restored, each Lender
which shall have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrower
agrees that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien or counterclaim, with respect to such participation as fully as
if such Lender were a holder of such Loan, LOC Obligation or other obligation
in the amount of such participation. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 3.14 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.14 to share in
the benefits of any recovery on such secured claim.
(b) Lenders and Agents. Except as otherwise expressly provided in
this Credit Agreement, if any Lender or any Agent shall fail to remit to any
other Agent or any other Lender an amount payable by such Lender or such Agent
to such other Agent or such other Lender pursuant to this Credit Agreement on
the date when such amount is due, such payments shall be made together with
interest thereon for each date from the date such amount is due until the date
such amount is paid to such other Agent or such other Lender at a rate per
annum equal to the Federal Funds Rate.
3.15 PAYMENTS, COMPUTATIONS, ETC.
(a) Payments by the Borrower. Except as otherwise specifically
provided herein, all payments of principal, interest and fees in connection
with Loans, LOC Obligations, the Commitment Fee, the Letter of Credit Fees, the
Issuing Lender Fees and the Administrative Agent's Fees shall be made to the
Administrative Agent in Dollars in immediately available funds, without setoff,
deduction, counterclaim or withholding of any kind, at the Administrative
Agent's office specified in Section 11.1 not later than 2:00 P.M. (Charlotte,
North Carolina time) on the date when due. Payments received after such time
shall be deemed to have been received on the next succeeding Business Day. The
Administrative Agent may (but shall not be obligated to) debit the amount of
any such payment which is not made by such time to any ordinary deposit account
of the Borrower maintained with the Administrative Agent (with notice to the
Borrower). The Borrower shall, at the time it makes any payment under this
Credit Agreement, specify to the Administrative Agent the Loans, LOC
Obligations, Fees, interest or other amounts payable by the Borrower hereunder
to which such payment is to be applied (and in the event that it fails so to
specify, or if such application would be inconsistent with the terms hereof,
the Administrative Agent shall distribute such payment to the Lenders in such
manner as the Administrative Agent may determine to be appropriate in respect
of obligations owing by the Borrower hereunder, subject to the terms of Section
3.13(a)). The Administrative Agent will distribute such payments to the
applicable Lenders if any such payment is received prior to 12:00 Noon
(Charlotte, North Carolina time on a Business Day in like funds as received
prior to the end of such Business Day and otherwise the Administrative Agent
will distribute such payment to such Lenders entitled thereto on the next
succeeding Business Day. Whenever any payment hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest
and Fees for the period of such extension). Except as expressly provided
otherwise herein, all computations of interest and fees shall be made on the
basis of the actual number of days elapsed over a year of 360 days, except with
respect to computation of interest on Base Rate Loans determined by reference
to the Prime Rate which shall be calculated based on a year of 365 or 366 days,
as appropriate. Interest shall accrue from and include the date of borrowing,
but exclude the date of payment.
(b) Advances by Lenders. Upon notice by the Administrative Agent
of its receipt of a Notice of Borrowing in accordance with Section 2.2(b)(i),
each Revolving Lender will make its Revolving Commitment
71
<PAGE> 42
Percentage of each Revolving Loan borrowing available to the Administrative
Agent for the account of the Borrower, or in such other manner as the
Administrative Agent may specify in writing, by 1:00 P.M. (Charlotte, North
Carolina time) on the date specified in the applicable Notice of Borrowing in
Dollars and in funds immediately available to the Administrative Agent. Each
Tranche B Term Lender will make its Tranche B Term Loan Commitment Percentage
of the Tranche B Term Loan available to the Administrative Agent for the
account of the Borrower, or in such other manner as the Administrative Agent
may specify in writing, by 1:00 P.M. (Charlotte, North Carolina time) on the
Closing Date in Dollars and in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the
Borrower by the Administrative Agent by crediting the account of the Borrower
with the aggregate of the amounts made available to the Administrative Agent by
the Lenders and in like funds as received by the Administrative Agent.
(c) Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement to the contrary,
after the occurrence and during the continuance of an Event of Default, all
amounts collected or received by the Administrative Agent or any Lender on
account of the Obligations or any other amounts outstanding under any of the
Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agents in connection with enforcing the rights of the Lenders
under the Credit Documents;
SECOND, to payment of any Administrative Agent's Fees then
due and payable;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents or otherwise with respect to the
Obligations owing to such Lender;
FOURTH, to the payment of all accrued interest and Fees on or
in respect of the Obligations;
FIFTH, to the payment of the outstanding principal amount of
the Obligations (including the payment of all LOC Obligations then
reimbursable by the Borrower pursuant to Section 2.6(c), but excluding
any LOC Obligations attributable to issued but undrawn Letters of
Credit) and to the payment of any principal amounts outstanding under
Hedging Agreements (to the extent permitted hereunder);
SIXTH, to the cash collateralization of all LOC Obligations
attributable to issued but undrawn Letters of Credit;
SEVENTH, to all other obligations which shall have become due
and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "SIXTH" above; and
EIGHTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that then outstanding
Obligations and obligations under Hedging Agreements (to the extent permitted
hereunder) held by such Lender bears to the aggregate then outstanding
Obligations and obligations under Hedging Agreements (to the extent permitted
hereunder)) of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above; and (iii) all amounts available to be
applied to pursuant to clause "SIXTH" above shall be held by the Administrative
Agent in a cash collateral account and applied (A) first, to reimburse the
Issuing Lender for any drawings under such Letters of Credit and (B) then,
following the expiration of all Letters of Credit, to all other obligations of
the types described in clauses "SIXTH" AND "SEVENTH" above in the manner
provided in this Section 3.15(b).
3.16 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts evidencing
each Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time
72
<PAGE> 43
to time under this Credit Agreement. Each Lender will make reasonable efforts
to maintain the accuracy of its account or accounts and to promptly update its
account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant
to Section 11.3(c)(i), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (A) the amount, type and
Interest Period of each Loan, (B) the amount of any principal or interest due
and payable or to become due and payable to each Lender hereunder and (C) the
amount of any sum received by the Administrative Agent hereunder from or for
the account of the Borrower and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.
(c) The entries made in the Register, accounts and subaccounts
maintained pursuant to subsection (b) of this Section 3.16 (and, if consistent
with the entries of the Administrative Agent, subsection (a)) shall be prima
facie evidence of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register, any such account, or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Borrower to repay the Loans and other obligations owing
to such Lenders in accordance with the terms hereof.
SECTION 4
GUARANTY
4.1 THE GUARANTEE.
(a) (i) Each of the Guarantors hereby jointly and severally
guarantees to each Lender, to each Affiliate of a Lender that enters into a
Hedging Agreement (to the extent permitted hereunder) and to the Agents, as
hereinafter provided, the prompt payment of the Guaranteed Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if
any of the Guaranteed Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) in accordance with the terms of
such extension or renewal.
(b) Notwithstanding any provision to the contrary contained
herein or in any other of the Credit Documents or Hedging Agreements, to the
extent the obligations of a Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of any
applicable state, provincial or federal law relating to fraudulent conveyances
or transfers or the granting of financial assistance) then the obligations of
each Guarantor hereunder shall be limited to the maximum amount that is
permissible under applicable law (whether federal, state or provincial and
including, without limitation, the Bankruptcy Code). In such case or otherwise
at the request of an Agent, each Credit Party shall take such action and shall
execute and deliver all such further documents required by such Agent to cause
the obligations of such Guarantor to be enforceable to the extent required by
this Agreement.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors under Section 4.1 are joint and
several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents or
Hedging Agreements, or any other agreement or instrument referred to therein,
or any substitution, release or exchange of any other guarantee of or security
for any of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 4.2 that the obligations of each
of the Guarantors hereunder shall be absolute and unconditional under any and
all circumstances. Each Guarantor agrees that such Guarantor shall have no
right of subrogation, indemnity, reimbursement or contribution against the
Borrower or any other Guarantor for amounts paid under this Section 4 until
such time as all of the Lenders (and any Affiliates of Lenders entering into
Hedging Agreements (to the extent permitted hereunder)) have been paid in full,
all Commitments under
73
<PAGE> 44
the Credit Agreement have been terminated and no Person or Governmental
Authority shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under the Credit Documents
or Hedging Agreements. Without limiting the generality of the foregoing, it is
agreed that, to the fullest extent permitted by law, the occurrence of any one
or more of the following shall not alter or impair the liability of any
Guarantor hereunder which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to
any Guarantor, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance
or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
any of the Credit Documents, any Hedging Agreement or any other
agreement or instrument referred to in the Credit Documents or Hedging
Agreements shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, any Agent or
any Lender or Lenders as security for any of the Guaranteed
Obligations shall fail to attach or be perfected; or
(v) any of the Guaranteed Obligations shall be
determined to be void or voidable (including, without limitation, for
the benefit of any creditor of any Guarantor) or shall be subordinated
to the claims of any Person (including, without limitation, any
creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Credit Documents, any Hedging Agreement or any other agreement or
instrument referred to in the Credit Documents or Hedging Agreements, or
against any other Person under any other guarantee of, or security for, any of
the Guaranteed Obligations.
4.3 REINSTATEMENT.
(a) The obligations of the Guarantors under this Section 4 shall
be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agents and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by the Agents or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
4.4 CERTAIN ADDITIONAL WAIVERS.
Each Guarantor agrees that such Guarantor shall have no right of
recourse to security for the Guaranteed Obligations, except through the
exercise of the rights of subrogation pursuant to Section 4.2.
4.5 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agents and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
9.2) for purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Guaranteed
Obligations being
74
<PAGE> 45
deemed to have become automatically due and payable), the Guaranteed
Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Guarantors for purposes of Section 4.1.
4.6 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree, as among themselves, that if any
Guarantor shall become an Excess Funding Guarantor (as defined below), each
other Guarantor shall, on demand of such Excess Funding Guarantor (but subject
to the succeeding provisions of this Section 4.6), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined below
and determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 4.6 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 4, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (a) "Excess Funding Guarantor" shall mean, in respect of any
obligations arising under the other provisions of this Section 4 (hereafter,
the "Guarantied Obligations"), a Guarantor that has paid an amount in excess of
its Pro Rata Share of the Guarantied Obligations; (b) "Excess Payment" shall
mean, in respect of any Guarantied Obligations, the amount paid by an Excess
Funding Guarantor in excess of its Pro Rata Share of such Guarantied
Obligations; and (c) "Pro Rata Share", for the purposes of this Section 4.6,
shall mean, for any Guarantor, the ratio (expressed as a percentage) of (i) the
amount by which the aggregate present fair saleable value of all of its assets
and properties exceeds the amount of all debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of such Guarantor hereunder) to (ii)
the amount by which the aggregate present fair saleable value of all assets and
other properties of the Borrower and all of the Guarantors exceeds the amount
of all of the debts and liabilities (including contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of the
Borrower and the Guarantors hereunder) of the Borrower and all of the
Guarantors, all as of the Closing Date (if any Guarantor becomes a party hereto
subsequent to the Closing Date, then for the purposes of this Section 4.6 such
subsequent Guarantor shall be deemed to have been a Guarantor as of the Closing
Date and the information pertaining to, and only pertaining to, such Guarantor
as of the date such Guarantor became a Guarantor shall be deemed true as of the
Closing Date).
4.7 CONTINUING GUARANTEE.
The guarantee in this Section 4 is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.
SECTION 5
CONDITIONS
5.1 CONDITIONS TO CLOSING.
This Credit Agreement shall become effective, and the initial
Extensions of Credit may be made, upon the satisfaction of the following
conditions precedent:
(a) Execution of Credit Agreement and Credit Documents. Receipt
by the Administrative Agent of (i) multiple counterparts of this Credit
Agreement, (ii) a Revolving Note for each Revolving Lender, (iii) a Tranche B
Term Note for each Tranche B Term Lender, (iv) multiple counterparts of the
Pledge Agreement, (v) multiple counterparts of the Security Agreement and (vi)
UCC financing statements and other documents relating to the Pledge Agreement
and the Security Agreement, if any, in each case executed by a duly authorized
officer of each party thereto and in each case conforming to the requirements
of this Credit Agreement.
(b) Legal Opinions. Receipt by the Administrative Agent of
multiple counterparts of opinions of counsel for the Credit Parties relating to
the Credit Documents and the transactions contemplated herein, in form and
substance satisfactory to the Administrative Agent and the Required Lenders.
75
<PAGE> 46
(c) Absence of Legal Proceedings. The absence of any action,
suit, investigation or proceeding pending in any court or before any arbitrator
or governmental instrumentality which could reasonably be expected to have a
Material Adverse Effect.
(d) Corporate Documents. Receipt by the Administrative Agent of
the following (or their equivalent) for each of the Credit Parties:
(i) Resolutions. Copies of resolutions of the board of
directors approving and adopting the respective Credit Documents, the
transactions contemplated therein and authorizing execution and
delivery thereof, certified by a secretary or assistant secretary as
of the Closing Date to be true and correct and in force and effect as
of such date.
(ii) Good Standing. Copies, where applicable, of (A)
certificates of good standing, existence or its equivalent certified
as of a recent date by the appropriate governmental authorities of the
state of incorporation and (B) certificates indicating payment of all
corporate franchise taxes certified as of a recent date by the
appropriate governmental taxing authorities of the state of
incorporation.
(iii) Officer's Certificate. An officer's certificate for
each of the Credit Parties dated as of the Closing Date substantially
in the form of Schedule 5.1(f)(iii)-1 or Schedule 5.1(f)(iii)-2, as
appropriate, in each case with appropriate insertions and attachments.
(e) Officer's Certificate. The Borrower shall have delivered to
the Administrative Agent and to the Trustee under the Senior Subordinated Note
Indenture a certificate of a Responsible Officer of the Borrower to the effect
that the acceptance by the Borrower of the Tranche B Term Loan does not violate
the provisions of Section 4.11 of the Senior Subordinated Note Indenture.
(f) Fees. Receipt of all fees, if any, owing pursuant to the
Administrative Agent's Fee Letter, Section 3.5 or otherwise.
(g) Section 5.2 Conditions. The conditions specified in Section
5.2 shall be satisfied.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit
hereunder (including the initial Extension of Credit to be made hereunder) is
subject to the satisfaction of the following conditions precedent on the date
of making such Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Credit Parties herein and in the other Credit Documents
and which are contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material respects on and
as of the date of such Extension of Credit as if made on and as of such date
(except for those which expressly relate to an earlier date and those which are
untrue solely as a result of a change permitted by this Agreement).
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or after giving
effect to the Extension of Credit to be made on such date unless such Default
or Event of Default shall have been waived in accordance with this Credit
Agreement.
(c) Officer's Certificate. If after giving effect to such
Extension of Credit, the aggregate principal amount of the Revolving
Obligations will exceed $100,000,000 (as such amount may be reduced pursuant to
clause (ii) of the definition of "Permitted Indebtedness" in the Senior
Subordinated Note Indenture, the Borrower shall have delivered to the
Administrative Agent and to the Trustee under the Senior Subordinated Note
Indenture a certificate of a Responsible Officer of the Borrower to the effect
that the acceptance by the Borrower of such Extension of Credit does not
violate the provisions of Section 4.11 of the Senior Subordinated Note
Indenture.
(d) Additional Conditions to Revolving Loans. If a Revolving Loan
is requested pursuant to Section 2.1, all conditions set forth in Section 2
shall have been satisfied.
76
<PAGE> 47
(e) Additional Conditions to Letters of Credit. If the issuance
of a Letter of Credit is requested pursuant to Section 2.1, all conditions set
forth in Section 2 shall have been satisfied.
(f) Additional Conditions to Swingline Loans. If a Swingline Loan
is requested pursuant to Section 2.1, all conditions set forth in Section 2
shall have been satisfied.
(g) Additional Conditions to Tranche B Term Loan. If the Tranche
B Term Loan is requested pursuant to Section 2.1, all conditions set forth in
Section 2 shall have been satisfied.
Each request for Extension of Credit (including extensions of
Eurodollar Loans and conversions of Base Rate Loans into Eurodollar Loans) and
each acceptance by the Borrower of an Extension of Credit (including extensions
of Eurodollar Loans and conversions of Base Rate Loans into Eurodollar Loans)
shall be deemed to constitute a representation and warranty by the Borrower as
of the date of such Extension of Credit that the applicable conditions in
paragraphs (a) and (b), and in (c), (d), (e), (f) or (g) of this subsection
have been satisfied.
SECTION 6
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make
Extensions of Credit, each of the Credit Parties hereby represents and warrants
to the Administrative Agent and to each Lender that:
6.1 FINANCIAL CONDITION.
Each of the financial statements described below (copies of which have
heretofore been provided to the Administrative Agent for distribution to the
Lenders), have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, are complete and correct in all
material respects and present fairly the financial condition and results from
operations of the entities and for the periods specified (subject in the case
of interim company-prepared statements to normal year-end adjustments and the
absence of footnotes):
(i) audited consolidated and consolidating balance sheets for the
members of the Consolidated Group for the fiscal years ended December 31, 1998
and December 31, 1999, together with related audited consolidated and
consolidating statements of operations, shareholders equity and cash flows for
such fiscal years, in each case certified by Arthur Andersen LLP, certified
public accountants; and
(ii) after the Closing Date, the annual and quarterly financial
statements provided in accordance with Sections 7.1(a) and (b).
6.2 NO CHANGES OR RESTRICTED PAYMENTS.
Since December 31, 1999, (a) there has been no circumstance,
development or event relating to or affecting the members of the Consolidated
Group which has had or would be reasonably expected to have a Material Adverse
Effect, and (b) except as permitted herein, no Restricted Payments have been
made or declared by any members of the Consolidated Group.
6.3 ORGANIZATION; EXISTENCE; COMPLIANCE WITH LAW.
Each of the Credit Parties (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation or
organization, except to the extent that the failure to be in good standing
would not, in the aggregate, have a Material Adverse Effect, (b) has the
corporate or other necessary power and authority, and the legal right to own
and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign entity and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing would not, in the aggregate, have a
Material Adverse Effect, and (d) is in compliance with its certificate of
incorporation and bylaws (or other organizational or
77
<PAGE> 48
governing documents) and all Requirements of Law, except to the extent that the
failure to comply therewith would not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
6.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each of the Credit Parties has the corporate or other necessary power
and authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and has taken all necessary corporate or other
action to authorize the execution, delivery and performance by it of the Credit
Documents to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with acceptance of extensions of credit
or the making of the guaranties hereunder or with the execution, delivery or
performance of any Credit Documents by the Credit Parties (other than those
which have been obtained, such filings as are required by the Securities and
Exchange Commission and to fulfill other reporting requirements with
Governmental Authorities) or with the validity or enforceability of any Credit
Document against the Credit Parties (except such filings as are necessary in
connection with the perfection of the Liens created by such Credit Documents).
Each Credit Document to which it is a party constitutes a legal, valid and
binding obligation of such Credit Party enforceable against such Credit Party
in accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
6.5 NO LEGAL BAR.
The execution, delivery and performance of the Credit Documents, the
borrowings hereunder and the use of the Extensions of Credit will not violate
any Requirement of Law, the certificate of incorporation or bylaws (or other
organizational or governing documents) or any Contractual Obligation of any
Credit Party (except those as to which waivers or consents have been obtained),
and will not result in, or require, the creation or imposition of any Lien on
any of its respective properties or revenues pursuant to any Requirement of
Law, its certificate of incorporation or bylaws (or other organizational or
governing documents) or Contractual Obligation other than the Liens arising
under or contemplated in connection with the Credit Documents. No member of the
Consolidated Group is in default under or with respect to any of its
Contractual Obligations in any respect which would reasonably be expected to
have a Material Adverse Effect.
6.6 NO MATERIAL LITIGATION.
No claim, litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best knowledge of
the Credit Parties, threatened by or against, any members of the Consolidated
Group or against any of their respective properties or revenues which (a)
purports to affect the legality, validity or enforceability of any of the
Credit Documents and which is reasonably likely to be adversely determined, or
(b) is reasonably likely to have a Material Adverse Effect.
6.7 NO DEFAULT.
No Default or Event of Default has occurred and is continuing.
6.8 OWNERSHIP OF PROPERTY; LIENS.
Each of the Credit Parties has good record and marketable title in fee
simple to, or (subject to the documentation of certain agreed-upon leases
between certain Credit Parties and certain of the shareholders or principals of
the corresponding Founding Companies) a valid leasehold interest in, all its
real property material to the Consolidated Group, and good title to, or a valid
leasehold interest in, all its other property material to the Consolidated
Group, and none of such property is subject to any Lien, except for Permitted
Liens.
6.9 INTELLECTUAL PROPERTY.
Each of the members of the Consolidated Group owns, or has the legal
right to use, the Intellectual Property necessary for each of them to conduct
its business as currently conducted, except for those the failure to own or
have such legal right to use would not be reasonably expected to have a
Material Adverse Effect. No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or
78
<PAGE> 49
effectiveness of any such Intellectual Property, nor does any Credit Party know
of any such claim, and the use of such Intellectual Property by the members of
the Consolidated Group does not infringe on the rights of any Person, except
for such claims and infringements that in the aggregate, would not be
reasonably expected to have a Material Adverse Effect.
6.10 NO BURDENSOME RESTRICTIONS.
Neither the certificate of incorporation or bylaws (or other
organizational or governing documents) nor any Requirement of Law or
Contractual Obligation of the members of the Consolidated Group would be
reasonably expected to have a Material Adverse Effect.
6.11 TAXES.
Each of the Credit Parties has filed or caused to be filed all United
States federal income tax returns and all other material tax returns which, to
the best knowledge of the Credit Parties, are required to be filed and has paid
(a) all taxes shown to be due and payable on said returns or (b) all taxes
shown to be due and payable on any assessments of which it has received notice
made against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any (i) taxes, fees or other charges with respect to which the
failure to pay, in the aggregate, would not have a Material Adverse Effect or
(ii) taxes, fees or other charges the amount or validity of which are currently
being contested and with respect to which reserves in conformity with GAAP have
been provided on the books of such Person), and no tax Lien has been filed
(other than tax Liens which, in the aggregate, would not have a Material
Adverse Effect), and, to the best knowledge of the Credit Parties, no claim is
being asserted, with respect to any such tax, fee or other charge (other than
such claims which, in the aggregate, would not have a Material Adverse Effect).
6.12 ERISA
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Internal
Revenue Code, whether or not waived, has occurred with respect to any Plan;
(iii) each Plan has been maintained, operated, and funded in compliance with
its own terms and in material compliance with the provisions of ERISA, the
Internal Revenue Code, and any other applicable federal or state laws; and (iv)
no lien in favor of the PBGC or a Plan has arisen or is reasonably likely to
arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as
defined in Section 4001(a)(16) of ERISA), whether or not vested, under each
Single Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case, in
accordance with Financial Accounting Standards Board Statement 87, utilizing
the actuarial assumptions used in such Plan's most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of the
assets of such Plan.
(c) No member of the Consolidated Group nor any ERISA Affiliate
has incurred, or, to the best knowledge of the Credit Parties, could be
reasonably expected to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. No member of the Consolidated
Group nor any ERISA Affiliate would become subject to any withdrawal liability
under ERISA if any member of the Consolidated Group or any ERISA Affiliate were
to withdraw completely from all Multiemployer Plans and Multiple Employer Plans
as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No member of the Consolidated Group nor
any ERISA Affiliate has received any notification that any Multiemployer Plan
is in reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been terminated
(within the meaning of Title IV of ERISA), and no Multiemployer Plan is, to the
best knowledge of the Credit Parties, reasonably expected to be in
reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Internal Revenue Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected or
79
<PAGE> 50
may subject any member of the Consolidated Group or any ERISA Affiliate to any
liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975
of the Internal Revenue Code, or under any agreement or other instrument
pursuant to which any member of the Consolidated Group or any ERISA Affiliate
has agreed or is required to indemnify any person against any such liability.
(e) No member of the Consolidated Group nor any ERISA Affiliates
has any material liability with respect to "expected post-retirement benefit
obligations" within the meaning of the Financial Accounting Standards Board
Statement 106. Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Internal
Revenue Code apply has been administered in compliance in all material respects
of such sections.
6.13 GOVERNMENTAL REGULATIONS, ETC.
(a) No part of the proceeds of the Extensions of Credit hereunder
will be used, directly or indirectly, for the purpose of purchasing or carrying
any "margin stock" within the meaning of Regulation U. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U. No indebtedness being reduced or retired out of the proceeds of the
Extensions of Credit hereunder was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation U or
any "margin security" within the meaning of Regulation T. "Margin stock" within
the meanings of Regulation U does not constitute more than 25% of the value of
the consolidated assets of the Borrower and its Subsidiaries. None of the
transactions contemplated by this Credit Agreement (including, without
limitation, the direct or indirect use of the proceeds of the Loans) will
violate or result in a violation of the Securities Act of 1933, as amended, or
the Securities Exchange Act of 1934, as amended, or regulations issued pursuant
thereto, or Regulation T, U or X.
(b) None of the members of the Consolidated Group is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940, each as amended. In addition,
none of the members of the Consolidated Group is (i) an "investment company"
registered or required to be registered under the Investment Company Act of
1940, as amended, and is not controlled by such a company, or (ii) a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of
any member of the Consolidated Group is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof the terms
"director", "executive officer" and "principal shareholder" (when used with
reference to any Lender) have the respective meanings assigned thereto in
Regulation O.
6.14 SUBSIDIARIES.
Set forth on Schedule 6.14 are all the Subsidiaries of the Borrower at
the Closing Date, the jurisdiction of their incorporation and the direct or
indirect ownership interest of the Borrower therein.
6.15 PURPOSE OF EXTENSIONS OF CREDIT.
The Extensions of Credit shall be used (i) to refinance existing
Funded Debt, (ii) to finance working capital, capital expenditures and other
lawful corporate purposes, including Permitted Acquisitions.
6.16 ENVIRONMENTAL MATTERS.
Except as would not reasonably be expected to have a Material Adverse
Effect:
(a) Each of the facilities and properties owned, leased or
operated by the members of the Consolidated Group (the "Properties") and all
operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Properties or the businesses operated by the members of the
Consolidated Group (the "Businesses"), and there are no conditions relating to
the Businesses or Properties that could give rise to liability under any
applicable Environmental Laws.
80
<PAGE> 51
(b) None of the Properties contains, or has previously contained,
any Materials of Environmental Concern at, on or under the Properties in
amounts or concentrations that constitute or constituted a violation of, or
could give rise to liability under, Environmental Laws.
(c) None of the members of the Consolidated Group has received
any written or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Businesses, nor
does any member of the Consolidated Group have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported
or disposed of from the Properties, or generated, treated, stored or disposed
of at, on or under any of the Properties or any other location, in each case by
or on behalf any members of the Consolidated Group in violation of, or in a
manner that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the best knowledge of any Credit Party, threatened,
under any Environmental Law to which any member of the Consolidated Group is or
will be named as a party, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect
to any member of the Consolidated Group, the Properties or the Businesses.
(f) There has been no release or, threat of release of Materials
of Environmental Concern at or from the Properties, or arising from or related
to the operations (including, without limitation, disposal) of any member of
the Consolidated Group in connection with the Properties or otherwise in
connection with the Businesses, in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
6.17 LOCATION OF INVENTORY AND CHIEF EXECUTIVE OFFICE.
(a) Set forth on Schedule 6.17(a) are locations, including street
address and state, where at least eighty percent (80%) of the inventory of the
Credit Parties is located. No Credit Party has moved any of its inventory from
a location identified for such Credit Party on Schedule 6.17(a) to another
location identified for a different Credit Party on Schedule 6.17(a) unless
title to such inventory has passed to the different Credit Party or the
Administrative Agent received 30 days' prior written notice thereof.
(b) Set forth on Schedule 6.17(b) is the location, including
street address and state, of the chief executive office and principal place of
business of each Credit Party.
SECTION 7
AFFIRMATIVE COVENANTS
Each of the Credit Parties covenants and agrees that on the Closing
Date, and so long as this Credit Agreement is in effect and until the
Commitments have been terminated, no Obligations remain outstanding and all
amounts owing hereunder or in connection herewith have been paid in full,
unless the Required Lenders otherwise consent in writing, the Borrower shall,
and, in the case of Sections 7.4, 7.5, 7.6, 7.7 and 7.8 below, each Credit
Party shall and shall cause each of its Domestic Subsidiaries to:
7.1 FINANCIAL STATEMENTS.
Furnish, or cause to be furnished, to the Administrative Agent and
Lenders:
(a) Audited Financial Statements. As soon as available,
but in any event within 95 days after the end of each fiscal year, an
audited consolidated balance sheet of the Consolidated Group as of the
end of the fiscal year and the related consolidated statements of
operations, shareholders' equity and cash flows for the year, audited
by Arthur Andersen LLP, or other firm of independent certified public
accountants of nationally recognized standing reasonably acceptable to
the Required Lenders, setting forth in each case in
81
<PAGE> 52
comparative form the figures for the previous year, reported without a
"going concern" or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit such
independent certified public accountants to certify such financial
statements without such qualification.
(b) Company-Prepared Financial Statements. As soon as
available, but in any event
(i) within 50 days after the end of each of the
first three fiscal quarters, a company-prepared consolidated
and consolidating balance sheet of the Consolidated Group as
of the end of the quarter and related company-prepared
consolidated and consolidating statements of operations,
shareholders' equity and cash flows for such quarterly period
and for the fiscal year to date;
(ii) within 30 days prior to the end of each
fiscal year, an annual business plan and budget for the
members of the Consolidated Group, containing, among other
things, projected financial statements for the next fiscal
year,
in each case setting forth in comparative form the consolidated and
consolidating figures for the corresponding period or periods of the
preceding fiscal year or the portion of the fiscal year ending with
such period, as applicable, in each case subject to normal year-end
audit adjustments.
(c) Borrowing Base Certificate. Within 30 days after the
end of each calendar month, a statement of the Borrowing Base and its
components as of the end of such calendar month, in form and content
satisfactory to the Administrative Agent and certified by the chief
financial officer, chief accounting officer, treasurer or assistant
treasurer of the Borrower to be true and correct as of the date
thereof (the "Borrowing Base Certificate").
All such financial statements shall be complete and correct in all
material respects (subject, in the case of interim statements, to
normal year-end audit adjustments) and shall be prepared in reasonable
detail and, in the case of the annual and quarterly financial
statements provided in accordance with subsections (a) and (b) above,
in accordance with GAAP applied consistently throughout the periods
reflected therein and further accompanied by a description of, and an
estimation of the effect on the financial statements on account of,
any change in the application of accounting principles as provided in
Section 1.3(a).
7.2 CERTIFICATES; OTHER INFORMATION.
Furnish, or cause to be furnished, to the Administrative Agent and the
Lenders:
(a) Accountant's Certificate and Reports. Concurrently
with the delivery of the financial statements referred to in
subsection 7.1(a) above, a certificate of the independent certified
public accountants reporting on such financial statements stating that
in the course of performing their audit, nothing came to their
attention that caused them to believe the Borrower was not in
compliance with the financial covenants contained in Section 7.9 below
insofar as such covenants relate to accounting matters, except as
specified in such certificate.
(b) Officer's Compliance Certificate. Concurrently with
the delivery of the financial statements referred to in Sections
7.1(a) and 7.1(b) above, a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge and
belief, (i) the financial statements fairly present in all material
respects the financial condition of the parties covered by such
financial statements, (ii) during such period the Credit Parties have
observed or performed in all material respects the covenants and other
agreements hereunder and under the other Credit Documents relating to
them, and satisfied in all material respects the conditions contained
in this Credit Agreement to be observed, performed or satisfied by
them, and (iii) such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such
certificate. Such certificate shall include the calculations required
to indicate compliance with Section 7.9. A form of Officer's
Certificate is attached as Schedule 7.2(b).
(c) Accountants' Reports. Promptly upon receipt, a copy
of any final (as distinguished from a preliminary or discussion draft)
"management letter" or other similar report submitted by independent
82
<PAGE> 53
accountants or financial consultants to the members of the
Consolidated Group in connection with any annual, interim or special
audit.
(d) Public Information. Within thirty days after the
same are sent, copies of all reports (other than those otherwise
provided pursuant to Section 7.1) and other financial information
which the Borrower sends to its public stockholders, and within thirty
days after the same are filed, copies of all financial statements and
non-confidential reports which the Borrower may make to, or file with,
the SEC.
(e) Change in Debt Rating. Within three (3) Business
Days after the date of any change in the Debt Rating by S&P or
Moody's, written notice of such change and the new Debt Rating.
(f) Other Information. Promptly, such additional
financial and other information as the Administrative Agent, at the
request of any Lender, may from time to time reasonably request.
7.3 NOTICES.
Give notice to the Administrative Agent (which shall promptly transmit
such notice to each Lender) of:
(a) Defaults. Immediately (and in any event within five
(5) Business Days) after any Responsible Officer knows or has reason
to know thereof, the occurrence of any Default or Event of Default.
(b) Contractual Obligations. Promptly (and in any event
within ten (10) Business Days) after any Responsible Officer knows or
has reason to know of the occurrence of any default or event of
default under any Contractual Obligation of any member of the
Consolidated Group which would reasonably be expected to have a
Material Adverse Effect.
(c) Legal Proceedings. Promptly (and in any event within
ten (10) Business Days) after any Responsible Officer knows or has
reason to know of any litigation, or any investigation or proceeding
(including without limitation, any environmental proceeding), or any
material development in respect thereof, affecting any member of the
Consolidated Group which, if adversely determined, would reasonably be
expected to have a Material Adverse Effect.
(d) ERISA. Promptly (and in any event within thirty (30)
Business Days) after any Responsible Officer knows or has reason to
know of (i) any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to, an
ERISA Event; (ii) with respect to any Multiemployer Plan, the receipt
of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against any of their ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which the members of the
Consolidated Group or any ERISA Affiliate are required to contribute
to each Plan pursuant to its terms and as required to meet the minimum
funding standard set forth in ERISA and the Internal Revenue Code with
respect; or (iv) any change in the funding status of any Plan that
reasonably could be expected to have a Material Adverse Effect;
together with a description of any such event or condition or a copy
of any such notice and a statement by the chief financial officer of
the Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, the members of the
Consolidated Group shall furnish the Administrative Agent and the
Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Internal
Revenue Code, respectively, for each "plan year" (within the meaning
of Section 3(39) of ERISA).
(f) Other. Promptly (and in any event within ten (10)
Business Days), any other development or event which a Responsible
Officer determines could reasonably be expected to have a Material
Adverse Effect.
83
<PAGE> 54
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the relevant Credit Parties propose to take
with respect thereto.
7.4 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with prudent business
practice (subject, where applicable, to specified grace periods) all material
obligations of each Credit Party of whatever nature and any additional costs
that are imposed as a result of any failure to so pay, discharge or otherwise
satisfy such obligations, except when the amount or validity of such
obligations and costs is currently being contested in good faith by appropriate
proceedings and reserves, if applicable, in conformity with GAAP with respect
thereto have been provided on the books of the Consolidated Group, as the case
may be.
7.5 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Continue to engage in business of the same general type as conducted
on the Closing Date by the Borrower and the other Credit Parties, taken as a
whole, and similar or related businesses (including, without limitation, the
provision of any services to rail transportation businesses); preserve, renew
and keep in full force and effect its corporate existence except as otherwise
permitted by this Credit Agreement and take all reasonable action to maintain
all rights, privileges, licenses and franchises necessary or desirable in the
normal conduct of its business except to the extent that failure to comply
therewith would not, in the aggregate, have a Material Adverse Effect; and
comply with all Contractual Obligations, its certificate of incorporation or
bylaws (or other organizational or governing documents) and all Requirements of
Law applicable to it except to the extent that failure to comply therewith
would not, in the aggregate, have a Material Adverse Effect.
7.6 MAINTENANCE OF PROPERTY; INSURANCE.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted)
except to the extent that failure to comply therewith would not, in the
aggregate, have a Material Adverse Effect; maintain with financially sound and
reputable insurance companies casualty, liability and such other insurance
(which may include plans of self-insurance) with such coverage and deductibles,
and in such amounts as may be consistent with prudent business practice and in
any event consistent with normal industry practice (except to any greater
extent as may be required by the terms of any of the other Credit Documents);
and furnish to the Administrative Agent or the Collateral Agent, upon written
request, full information as to the insurance carried.
7.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
(a) Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law shall
be made of all dealings and transactions in relation to its businesses and
activities;
(b) Permit, during regular business hours and upon reasonable
notice to a Responsible Officer by the Administrative Agent, the Administrative
Agent, and its representatives, to visit and inspect any of its properties and
examine and make abstracts (including photocopies) from any of its books and
records (other than materials protected by the attorney-client privilege and
materials which the Credit Parties may not disclose without violation of a
confidentiality obligation binding upon them);
(c) Permit the Administrative Agent and the Lenders to discuss
the business, operations, properties and financial and other condition of the
Credit Parties with officers and employees of the Borrower and, so long as any
discussion takes place in the presence of a Responsible Officer, with officers
and employees of the Credit Parties and with the Borrower's independent
certified public accountants; and
84
<PAGE> 55
(d) Permit the Administrative Agent, on behalf of the Lenders,
and its representatives (including representatives of the Lenders), to conduct
an annual audit of the inventory and receivables of the Credit Parties, at the
expense of the Borrower.
The cost of the inspection referred to in clause (b) above shall be
for the account of the Administrative Agent unless an Event of Default has
occurred and is continuing, in which case the cost of such inspection shall be
for the account of the Credit Parties.
7.8 ENVIRONMENTAL LAWS.
(a) Comply in all material respects with, and take reasonable
actions to ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and take reasonable actions
to ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws except to
the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect; and
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the failure to do or the pendency of such
proceedings would not reasonably be expected to have a Material Adverse Effect.
7.9 FINANCIAL COVENANTS.
Comply with the following financial covenants (each of which shall be
computed in accordance with Section 1.3(b), to the extent applicable):
(a) Consolidated Total Leverage Ratio. As of the end of each
fiscal quarter of the members of the Consolidated Group, the Consolidated Total
Leverage Ratio shall not be greater than 4.0:1.0.
(b) Consolidated Senior Leverage Ratio. As of the end of each
fiscal quarter of the members of the Consolidated Group, the Consolidated
Senior Leverage Ratio shall not be greater than 2.5:1.0.
(c) Consolidated Net Worth. As of the end of each fiscal quarter
of the members of the Consolidated Group, Consolidated Net Worth shall be not
less than the sum of $110,000,000 plus on the last day of each fiscal quarter
to end after December 31, 1999, seventy-five percent (75%) of Consolidated Net
Income for the fiscal quarter (but not less than zero), such increases to be
cumulative, plus one hundred percent (100%) of any increases in Consolidated
Net Worth resulting from Equity Transactions occurring after the Closing Date.
(d) Consolidated Fixed Charge Coverage Ratio. As of the end of
each fiscal quarter of the members of the Consolidated Group, the Consolidated
Fixed Charge Coverage Ratio shall not be less than 1.75:1.0.
(e) Consolidated Capital Expenditures. Consolidated Capital
Expenditures for any fiscal year shall not exceed an amount equal to the
greater of (a) five percent (5%) of revenues of the Consolidated Group
determined on a consolidated basis in accordance with GAAP for such fiscal year
or (b) $25,000,000.
7.10 ADMINISTRATIVE FEES.
Pay to the Administrative Agent the Administrative Agent's Fees and
comply with the other agreements provided for in the Administrative Agent's Fee
Letter.
7.11 ADDITIONAL GUARANTIES AND STOCK PLEDGES.
(a) Domestic Subsidiaries. Where Domestic Subsidiaries which are
not Guarantors (the "Non-Guarantor Domestic Subsidiaries") shall at any time
(the "Threshold Requirement"):
85
<PAGE> 56
(i) in any instance for any such Non-Guarantor Domestic
Subsidiary, constitute more than five percent (5%) of consolidated
assets for the Consolidated Group as of the end of the immediately
preceding fiscal quarter or generate more than five percent (5%) of
consolidated revenues for the Consolidated Group for the period of
four consecutive fiscal quarters ending as of the end of the
immediately preceding fiscal quarter, or
(ii) in the aggregate for all such Non-Guarantor Domestic
Subsidiaries, constitute more than ten percent (10%) of consolidated
assets for the Consolidated Group as of the end of the immediately
preceding fiscal quarter or generate more than ten percent (10%) of
consolidated revenues for the Consolidated Group for the period of
four consecutive fiscal quarters ending as of the end of the
immediately preceding fiscal quarter,
then the Borrower shall (i) notify the Administrative Agent thereof within 10
days after a Responsible Officer has knowledge thereof, and (ii) within 45 days
thereafter, (A) cause each such Domestic Subsidiary to become a Guarantor by
execution of a Joinder Agreement, such that immediately after joinder as a
Guarantor, the remaining Non-Guarantor Domestic Subsidiaries shall not in any
instance, or collectively, exceed the Threshold Requirement, (B) deliver with
the Joinder Agreement such supporting resolutions, incumbency certificates,
corporate formation and organizational documentation and opinions of counsel as
the Administrative Agent may reasonably request, and (C) deliver stock
certificates and related pledge agreements or pledge joinder agreements
evidencing the pledge of 100% of the capital stock of each Domestic Subsidiary
(whether or not it is a Guarantor) as security for the obligations of the
Borrower under the Credit Documents, together with undated stock transfer
powers executed in blank.
(b) Foreign Subsidiaries. At any time that the Foreign
Subsidiaries shall in the aggregate generate more than either (each a "Foreign
Threshold") ten percent (10%) of consolidated revenues for the Consolidated
Group on a consolidated basis for the period of four consecutive fiscal
quarters ending as of the end of the immediately preceding fiscal quarter or
more than ten percent (10%) of Consolidated EBITDA for the period of four
consecutive fiscal quarters ending as of the end of the immediately preceding
fiscal quarter, then the Borrower shall (i) notify the Administrative Agent
thereof within 10 days after a Responsible Officer has knowledge thereof, and
(ii) within 45 days thereafter, cause (A) delivery of supporting resolutions,
incumbency certificates, corporation formation and organizational documentation
and opinions of counsel as the Administrative Agent may reasonably request, and
(B) delivery of stock certificates (where required for perfection under local
law) and a related pledge agreement or pledge joinder agreement evidencing the
pledge of 66% (or such greater percentage which would not result in material
adverse tax consequences) of the issued and outstanding capital stock entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of
the issued and outstanding capital stock not entitled to vote (within the
meaning of Treas. Reg. Section 1.956-2(c)(2)) of each Foreign Subsidiary
directly owned by a Credit Party, such that immediately after such pledge, the
Foreign Subsidiaries whose capital stock has not been pledged pursuant to this
clause (b) shall not exceed the Foreign Threshold, in each case to secure the
obligations of the Borrower under the Credit Documents and in each case
together with undated stock transfer powers executed in blank and other
ancillary documents reasonably requested by the Collateral Agent; provided,
however, that to the extent any capital stock of any Foreign Subsidiary is
pledged, or required to be pledged, as security for any working capital
facility extended to any Foreign Subsidiary, (I) such capital stock shall not
be required to be pledged as security for the obligations of the Borrower under
the Credit Documents and (II) to the extent any such capital stock has already
been pledged as security for the obligations of the Borrower under the Credit
Documents, the Administrative Agent shall execute releases (and similar
agreements) necessary to release such pledge and shall return such capital
stock to the owner thereof.
(c) Guaranties Given in respect of Other Indebtedness.
Notwithstanding anything to the contrary contained herein, the Borrower will
promptly provide, or cause to be provided, to the Administrative Agent,
appropriate Joinder Agreements from any Subsidiary or Affiliate of the Borrower
which shall give a guaranty in respect of the Senior Subordinated Notes,
together with the other items referenced in subsections (a) and (b) above.
7.12 OWNERSHIP OF SUBSIDIARIES.
Except to the extent otherwise permitted in Section 8.6, the Borrower
shall, directly or indirectly, own at all times 100% of the Voting Stock of
each of its Subsidiaries.
86
<PAGE> 57
7.13 USE OF PROCEEDS.
Extensions of Credit will be used solely for the purposes provided in
Section 6.15.
7.14 LOCATION OF INVENTORY.
(a) Updates to Schedule 6.17(a). If at any time at least eighty
percent (80%) of the inventory of the Credit Parties is not located at the
locations set forth on Schedule 6.17(a), then the Borrower shall promptly
provide to the Administrative Agent a written update to Schedule 6.17 such that
such schedule, as updated, identifies locations at which at least eighty
percent (80%) of the inventory of the Credit Parties is located. If at any time
more than (10%) of the inventory of the Credit Parties is held by CPI Concrete
Products, Incorporated, in the State of Tennessee, then the Borrower shall
promptly notify the Administrative Agent thereof and shall provide the
Administrative Agent with such information regarding the location of other
inventory and other Collateral as the Administrative Agent may reasonably
request. In addition, the Borrower shall provide thirty days prior written
notice to the Administrative Agent prior to moving inventory from a location
identified on Schedule 6.17(a) to another location owned by another Credit
Party identified on Schedule 6.17(a).
(b) Additional Locations. Upon the request of the Administrative
Agent, the Borrower shall, within ten (10) Business Days of such request,
provide to the Administrative Agent a written schedule of the locations,
including street address and state, where any of the Collateral is located.
SECTION 8
NEGATIVE COVENANTS
Each of the Credit Parties covenants and agrees that on the Closing
Date, and so long as this Credit Agreement is in effect and until the
Commitments have been terminated, no Obligations remain outstanding and all
amounts owing hereunder or in connection herewith, have been paid in full,
unless the Required Lenders otherwise consent in writing, each Credit Party
shall not and shall not permit any of its Domestic Subsidiaries to:
8.1 INDEBTEDNESS.
Contract, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness arising or existing under this Credit
Agreement and the other Credit Documents;
(b) Indebtedness set forth in Schedule 8.1, and
renewals, refinancings and extensions thereof on terms and conditions
consistent with then prevailing market standards for such existing
Indebtedness;
(c) Indebtedness (including Capital Lease Obligations)
incurred to provide all or a portion of the purchase price or costs of
construction of an asset or, in the case of a sale/leaseback
transaction as described in Section 8.9, to finance the value of such
asset owned by a member of the Consolidated Group, provided that (i)
such Indebtedness when incurred shall not exceed the purchase price or
cost of construction of such asset or, in the case of a sale/leaseback
transaction, the fair market value of such asset, (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of
the principal balance outstanding thereon at the time of such
refinancing, and (iii) the aggregate amount of Capital Lease
Obligations shall not exceed $15 million at any time outstanding and
the total amount of all such Indebtedness (including such Indebtedness
set forth on Schedule 8.1) shall not exceed $30 million at any time
outstanding;
(d) Indebtedness and obligations owing under interest
rate protection agreements relating to the Obligations hereunder and
under interest rate, commodities and foreign currency exchange
protection agreements entered into in the ordinary course of business
to manage existing or anticipated risks and not for speculative
purposes;
87
<PAGE> 58
(e) unsecured intercompany Indebtedness owing by a
member of the Consolidated Group to another member of the Consolidated
Group (subject, however, to the limitations of Section 8.5 in the case
of the member of the Consolidated Group extending the intercompany
loan, advance or credit);
(f) Subordinated Debt of the Borrower consisting of
(i) (A) the Senior Subordinated Notes
issued prior to the Closing Date in an aggregate principal
amount of up to $175 million, (B) an additional $75 million
of Senior Subordinated Notes issued after the Closing Date,
provided that, prior to any such issuance, (I) the Borrower
shall demonstrate it will be in compliance with the financial
covenants in Section 7.9 on a Pro Forma Basis for the period
of four consecutive fiscal quarters immediately preceding the
date of such issuance, and (II) no Default or Event of
Default shall exist after giving effect to such issuance, and
(C) renewals, refinancing and refundings of the then
outstanding principal amount of the Senior Subordinated Notes
the terms of subordination of which shall be identical in all
material respects to the terms of subordination under the
Senior Subordinated Notes (and the Senior Subordinated Note
Indenture) and on other terms and conditions no less
favorable to the Lenders than the terms and conditions
contained in the Senior Subordinated Notes (and the Senior
Subordinated Note Indenture); and
(ii) other Subordinated Debt, provided that (A)
the Borrower shall demonstrate it will be in compliance with
the financial covenants in Section 7.9 on a Pro Forma Basis
for the period of four consecutive fiscal quarters
immediately preceding the date of such issuance, and (B) no
Default or Event of Default shall exist after giving effect
to the issuance thereof;
(g) Indebtedness in respect of financed insurance
premium obligations;
(h) purchase money Indebtedness (including Capital Lease
Obligations) assumed in connection with the Permitted Acquisitions in
an aggregate principal amount not to exceed $25,000,000 at any time
outstanding;
(i) seller financing obligations incurred in connection
with the Permitted Acquisitions in an aggregate principal amount not
to exceed an amount equal to fifteen percent (15%) of Consolidated Net
Worth as of the end of the immediately preceding fiscal quarter;
(j) other unsecured Indebtedness of any of the Credit
Parties of up to $3,000,000 in the aggregate at any time outstanding;
(k) Indebtedness not otherwise permitted by this Section
8.1 but which is consented to in writing by the Required Lenders
(provided that if the aggregate principal amount of such Indebtedness
equals or exceeds $25,000,000, the Required Lenders shall determine
whether or not the instrument evidencing such Indebtedness shall
specifically designate that such Indebtedness is "Designated Senior
Debt" (as such term is defined in the Senior Subordinated Notes));
(l) Support Obligations of any member of the
Consolidated Group in respect of Indebtedness permitted under clauses
(a) through (k) of this Section 8.1, provided, however, that any
Support Obligations given in support of Subordinated Debt shall be
subordinated on the same basis as the Subordinated Debt which is the
subject thereof; and
(m) Support Obligations of the Borrower in respect of
Indebtedness of Foreign Subsidiaries under working capital facilities
in an amount not to exceed $10 million in the aggregate at any time
outstanding.
88
<PAGE> 59
8.2 LIENS.
Contract, create, incur, assume or permit to exist any Lien with
respect to any of their respective property or assets of any kind (whether real
or personal, tangible or intangible), whether now owned or hereafter acquired,
except for Permitted Liens.
8.3 CONSOLIDATION, MERGER, DIVESTITURE, ETC.
(a) Enter into a transaction of merger or consolidation,
except
(i) the Borrower or any Domestic Subsidiary may
be a party to a transaction of merger or consolidation with a Domestic
Subsidiary, provided that (A) if the Borrower is a party thereto, it
shall be the surviving corporation, (B) if a Guarantor is a party
thereto and the Borrower is not a party thereto, a Guarantor shall be
the surviving corporation or the surviving corporation shall be a
Domestic Subsidiary and shall become a Guarantor hereunder pursuant to
Section 7.11 concurrently therewith, and (C) no Default or Event of
Default shall exist either immediately prior to or immediately after
giving effect thereto; and
(ii) a Domestic Subsidiary may be a party to a
transaction of merger or consolidation with any other Person in
connection with an Acquisition permitted under Section 8.4 and a
Divestiture permitted under Section 8.3(b), provided that, in
connection with an Acquisition, the provisions of Section 7.11
regarding joinder of certain Domestic Subsidiaries as Guarantors
hereunder shall be complied with.
(b) Make any Divestiture which:
(i) in any instance (including any series of
related transactions comprising a Divestiture) shall be of Property
(or of a Person owning Property) constituting more than five percent
(5%) of consolidated assets of the Consolidated Group at the end of
the immediately preceding fiscal year or generating more than five
percent (5%) of Consolidated Net Income for the immediately preceding
fiscal year, or
(ii) in the aggregate in any fiscal year shall
be of Property (or of a Person owning Property) constituting more than
ten percent (10%) of consolidated assets of the Consolidated Group at
the end of the immediately preceding fiscal year or generating more
than ten percent (10%) Consolidated Net Income for the immediately
preceding fiscal year;
provided in the case of any Divestiture permitted under subsections
(i) and (ii) above, that no Default of Event of Default would exist
after giving effect thereto, determined in the case of financial
covenant compliance on a Pro Forma Basis for the period of four
consecutive fiscal quarters immediately preceding the date of such
Divestiture and as otherwise set forth in Section 1.3(b).
(c) In the case of the Borrower, liquidate, wind-up or
dissolve, whether voluntarily or involuntarily (or suffer to permit
any such liquidation or dissolution).
Any consent of the Required Lenders requested by the Borrower under
this Section 8.3 shall not be arbitrarily withheld or unreasonably delayed.
8.4 ACQUISITIONS.
Make any Acquisition, unless
(a) in respect of any Acquisition, total cash
consideration shall not exceed an amount equal to thirty percent (30%)
of Consolidated EBITDA on a Pro Forma Basis for the immediately
preceding fiscal year;
89
<PAGE> 60
(b) in respect of all Acquisitions in any fiscal year,
total cash consideration shall not exceed an amount equal to sixty
percent (60%) of Consolidated EBITDA on a Pro Forma Basis for the
immediately preceding fiscal year;
(c) the Board of Directors of the Person which is, or
whose Property is, the subject of the Acquisition shall have approved
the Acquisition; and
(d) no Default or Event of Default would exist after
giving effect thereto, determined in the case of financial covenant
compliance on a Pro Forma Basis for the period of four consecutive
fiscal quarters immediately preceding the date of such Acquisition and
as otherwise set forth in Section 1.3(b).
Any consent of the Required Lenders requested by the Borrower under
this Section 8.4 shall not be arbitrarily withheld or unreasonably delayed.
8.5 INVESTMENTS.
Make any Investment in any Person except for Permitted Investments.
8.6 OWNERSHIP OF EQUITY INTERESTS.
Enter into any Equity Transaction, except for the issuance of up to
$50 million of Permitted Preferred Stock.
8.7 FISCAL YEAR.
Change its fiscal year from a December 31 fiscal year end.
8.8 RESTRICTED PAYMENTS.
Make or permit any Restricted Payments, except for the payment by the
Borrower of cash dividends on Permitted Preferred Stock so long as no Default
or Event of Default exists immediately prior thereto or would exist immediately
after giving effect thereto.
8.9 SALE LEASEBACKS.
Except as permitted pursuant to Section 8.1(c), directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of
any Property, whether now owned or hereafter acquired, (i) which such Person
has sold or transferred or is to sell or transfer to any other Person other
than a Credit Party or (ii) which such Person intends to use for substantially
the same purpose as any other Property which has been sold or is to be sold or
transferred by such Person to any other Person in connection with such lease.
8.10 NO FURTHER NEGATIVE PLEDGES.
Except with respect to (i) prohibitions against other encumbrances on
specific Property encumbered to secure payment of particular Indebtedness
(which Indebtedness relates solely to such specific Property, and improvements
and accretions thereto, and is otherwise permitted hereby) and (ii) the Senior
Subordinated Notes, enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption of any Lien
upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given
for some other obligation.
8.11 Modifications and Payments in respect of Subordinated Debt.
(a) Amend or modify (or consent to, permit or acquiesce to the
amendment or modification of) the Subordinated Debt if the effect thereof would
be to (A) increase the interest rate on the Subordinated Debt; (B) change the
dates upon which payments of principal or interest are due on the Subordinated
Debt other than to extend such dates; (C) change any default or event of
default other than to delete or make any default provision therein less
restrictive; (D) change or add any covenant with respect thereto other than to
make any covenant less restrictive; or
90
<PAGE> 61
(E) change the redemption or prepayment provisions thereof other than to extend
the dates therefor or to reduce the premiums payable in connection therewith,
in each case without the prior written consent of the Required Lenders;
provided, however, that nothing contained in this Section 8.11(a) or elsewhere
in this Agreement shall be construed to require the consent of Required Lenders
to any waiver by the holders of Subordinated Debt of any default or event of
default under the Subordinated Debt documents or of any of the rights and
remedies of the holders of Subordinated Debt thereunder;
(b) Make any payment in contravention of the terms of any
Subordinated Debt; or
(c) Except in connection with a refinancing or refunding
permitted hereunder, make any prepayment, redemption, defeasance or acquisition
for value of (including without limitation, by way of depositing money or
securities with the trustee with respect thereto before due for the purpose of
paying when due), or refund, refinance or exchange of any Subordinated Debt,
other than regularly scheduled payments of principal and interest on such
Subordinated Debt, without the prior written consent of the Required Lenders
hereunder.
8.12 Limitations on Transactions with Affiliates.
(a) Directly or indirectly enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any Property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
Transaction"), other than (x) Affiliate Transactions permitted under paragraph
(b) below and (y) Affiliate Transactions on terms that are no less favorable
than those that might reasonably have been obtained in a comparable transaction
at such time on an arm's-length basis from a Person that is not an Affiliate of
the Borrower or other member of the Consolidated Group.
All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other Property with a fair market value in excess of $2,000,000
shall be approved by the Board of Directors of the respective member of the
Consolidated Group, as the case may be, such approval to be evidenced by a
Board Resolution stating that such Board of Directors has determined that such
transaction complies with the foregoing provisions. If a member of the
Consolidated Group enters into an Affiliate Transaction (or a series of related
Affiliate Transactions related to a common plan) that involves an aggregate
fair market value of more than $5,000,000, the Borrower or other member of the
Consolidated Group, as the case may be, shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction or
series of related transactions to the Borrower or other relevant member of the
Consolidated Group, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Administrative Agent.
(b) The restrictions set forth in the first paragraph of this
covenant shall not apply to:
(1) reasonable fees and compensation (including
severance payments and compensation in the form of
securities) and customary expense, reimbursement paid to and
indemnity and reimbursement provided on behalf of, officers,
directors, employees or consultants of the Borrower or any
member of the Consolidated Group as determined in good faith
by the Borrower's Board of Directors or senior management;
(2) transactions exclusively between or among the
Borrower or any of the members of the Consolidated Group or
exclusively between or among such members of the Consolidated
Group, provided such transactions are not otherwise
prohibited hereunder;
(3) transactions pursuant to or contemplated by any
agreement as in effect as of April 6, 1999 or any amendment
thereto or any replacement agreement so long as any such
amendment or replacement agreement is not more
disadvantageous to the Lenders hereunder in any material
respect than the original agreement as in effect on April 6,
1999;
(4) loans and advances to employees or officers which
constitute Permitted Investments hereunder; and
(5) Restricted Payments permitted hereunder.
91
<PAGE> 62
8.13 Limitation on Earn-Out Payments.
Make any cash payments in settlement of any contingent obligations
incurred in connection with Acquisitions (other than Support Obligations
permitted by Section 8.1), including, without limitation, any "earn-out
payments", in excess of $15,000,000 in the aggregate during any fiscal year.
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of
any of the Loans, or
(ii) default, and such default shall continue for three
(3) or more Business Days, in the payment when due of any
reimbursement obligations under Letters of Credit or of any interest
on any of the Loans or on any reimbursement obligations under Letters
of Credit or of any Fees or other amounts owing hereunder, under any
of the other Credit Documents or in connection herewith or therewith;
or
(b) Representations. Any representation, warranty or statement
made or deemed to be made herein, in any of the other Credit Documents, or in
any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove untrue in any material respect on the date as of
which it was made or deemed to have been made (other than those which are
untrue solely as a result of changes permitted by this Agreement); or
(c) Covenants.
(i) Default in the due performance or observance of any
term, covenant or agreement contained in Section 7.3(a), 7.9, 7.11,
7.13 or 8.1 through 8.13, inclusive; or
(ii) Default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 9.1) contained in this
Credit Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a Responsible Officer
becoming aware of such default or notice thereof by the Administrative
Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any material term, covenant or agreement
in any of the other Credit Documents (subject to applicable grace or cure
periods, if any), or (ii) except as to any Credit Party which is dissolved,
released or merged or consolidated out of existence as the result of or in
connection with a dissolution, merger or disposition permitted by Section 8.3
or Section 8.4, any Credit Document shall fail to be in full force and effect
or to give the Administrative Agent and/or the Lenders any material part of the
Liens, rights, powers and privileges purported to be created thereby; or
(e) Guaranties. Except as to any Credit Party which is dissolved,
released or merged or consolidated out of existence as the result of or in
connection with a dissolution, merger or disposition permitted by Section 8.3
or Section 8.4, the guaranty given by any Guarantor hereunder or any material
provision thereof shall cease to be in full force and effect, or any Guarantor
hereunder or any Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor's obligations under such guaranty, or any Guarantor
shall default in the due performance or observance of any term, covenant or
agreement on its part to be performed or observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with
respect to any Material Credit Party; or
92
<PAGE> 63
(g) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit Agreement)
in excess of $5,000,000 in the aggregate for the Consolidated Group taken as a
whole, (A) (1) any Material Credit Party shall default in any payment (beyond
the applicable grace period with respect thereto, if any) with respect to any
such Indebtedness, or (2) the occurrence and continuance of a default in the
observance or performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event or condition shall occur or condition exist, the effect of which default
or other event or condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is required),
any such Indebtedness to become due prior to its stated maturity; or (B) any
such Indebtedness shall be declared due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof; or
(h) Judgments. Any Material Credit Party shall fail within 30
days of the date due and payable to pay, bond or otherwise discharge any
judgment, settlement or order for the payment of money which judgment,
settlement or order, when aggregated with all other such judgments, settlements
or orders due and unpaid at such time, exceeds $5,000,000, and which is not
stayed on appeal (or for which no motion for stay is pending) or is not
otherwise being executed; or
(i) ERISA. Any of the following events or conditions, if such
event or condition could reasonably be expected to have a Material Adverse
Effect: (1) any "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Internal Revenue Code, whether or
not waived, shall exist with respect to any Plan, or any Lien shall arise on
the assets of a member of the Consolidated Group or any ERISA Affiliate in
favor of the PBGC or a Plan; (2) an ERISA Event shall occur with respect to a
Single Employer Plan, which is, in the reasonable opinion of the Administrative
Agent, likely to result in the termination of such Plan for purposes of Title
IV of ERISA; (3) an ERISA Event shall occur with respect to a Multiemployer
Plan or Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (i) the termination of such Plan for
purposes of Title IV of ERISA, or (ii) a member of the Consolidated Group or
any ERISA Affiliate incurring any liability in connection with a withdrawal
from, reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency of (within the meaning of Section 4245 of ERISA) such Plan; or (4)
any prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code) or breach of fiduciary
responsibility shall occur which may subject a member of the Consolidated Group
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Internal Revenue Code, or under any
agreement or other instrument pursuant to which a member of the Consolidated
Group or any ERISA Affiliate has agreed or is required to indemnify any person
against any such liability; or
(k) Subordinated Debt. Any Governmental Authority determines that
(i) the Obligations do not constitute Senior Debt (as defined in the indenture
governing the Senior Subordinated Notes) or (ii) the obligations of the Credit
Parties with respect to the Senior Subordinated Notes are not fully subordinate
to the repayment of the Obligations and all other amounts owing under the
Credit Documents.
(l) Ownership. There shall occur a Change of Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuation of an Event of
Default, the Administrative Agent shall, upon the request and direction of the
Required Lenders, by written notice to the Credit Parties take any of the
following actions without prejudice to the rights of the Agents or any Lender
to enforce its claims against the Credit Parties, except as expressly provided
for herein:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit (based on
the maximum face amount of LOC Obligations then outstanding) and any
and all other indebtedness or obligations of any and every kind owing
by the Credit Parties to any Agent and/or any of the Lenders
93
<PAGE> 64
hereunder to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each of the Credit Parties.
(iii) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), it will
immediately pay) to the Administrative Agent additional cash, to be
held by the Administrative Agent, for the benefit of the Lenders, in a
cash collateral account as additional security for the LOC Obligations
in respect of subsequent drawings under all then outstanding Letters
of Credit in an amount equal to the maximum aggregate amount which may
be drawn under all Letters of Credits.
(iv) Enforcement of Rights. Enforce any and all rights
and interests created and existing under the Credit Documents and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid Fees and other indebtedness
or obligations owing to any Agent and/or any of the Lenders hereunder
automatically shall immediately become due and payable without presentment,
demand, protest or the giving of any notice or other action by any Agent or the
Lenders, all of which are hereby waived by the Credit Parties.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
The Lenders hereby designate and appoint Bank of America, N.A., as
Administrative Agent and as Collateral Agent of the Lenders to act as specified
herein and the other Credit Documents, and each of the Lenders hereby
authorizes the Agents to take such action on its behalf under the provisions of
this Credit Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to such Agents by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Each of the Lenders further directs and
authorizes the Agents to execute releases (or similar agreements) to give
effect to the provisions of this Credit Agreement and the other Credit
Documents, including specifically, without limitation, in connection with a
Divestiture consented to or permitted pursuant to the provisions of Section 8.3
or a sale, lease, transfer or other disposition of Property not prohibited by
this Credit Agreement. Notwithstanding any provision to the contrary elsewhere
herein and in the other Credit Documents, the Agents shall not have any duties
or responsibilities, except those expressly set forth herein and therein, or
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Credit Agreement or any of the other Credit Documents, or shall
otherwise exist against the Agents. The provisions of this Section 10 are
solely for the benefit of the Agents and the Lenders, and none of the Credit
Parties shall have any rights as a third party beneficiary of the provisions
hereof (other than as set forth in the second sentence hereof). In performing
its functions and duties under this Credit Agreement and the other Credit
Documents, each Agent shall act solely as Agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship
of agency or trust with or for any Credit Party or any of their respective
Affiliates. The title of Documentation Agent is bestowed in recognition of the
participation in this credit by the Syndication Agent, and such title shall not
impose or imply any duties or responsibilities whatsoever of the Documentation
Agent, in its capacity as such, to the Credit Parties, the Agents or the
Lenders.
10.2 DELEGATION OF DUTIES.
Each Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
94
<PAGE> 65
10.3 EXCULPATORY PROVISIONS.
No Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by them or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for
its or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained
herein or in any of the other Credit Documents or in any certificate, report,
document, financial statement or other written or oral statement referred to or
provided for in, or received by such Agent under or in connection herewith or
in connection with the other Credit Documents, or the enforceability or
sufficiency therefor of any of the other Credit Documents, or for any failure
of any Credit Party to perform its obligations hereunder or thereunder. No
Agent shall be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by the
Borrower or any other Credit Party in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made available by
such Agent to the Lenders or by or on behalf of the Credit Parties to such
Agent or any Lender or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or of the existence
or possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Credit Parties or any of their respective
Affiliates.
10.4 RELIANCE ON COMMUNICATIONS.
Each Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the such Agent with reasonable care). Each Agent may
deem and treat the Lenders as the owners of their respective interests
hereunder for all purposes unless a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent in
accordance with Section 11.3(b). Each Agent shall be fully justified in failing
or refusing to take any action under this Credit Agreement or under any of the
other Credit Documents unless it shall first receive such advice or concurrence
of the Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. Each Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or under any of the other
Credit Documents in accordance with a request of the Required Lenders (or to
the extent specifically provided in Section 11.6, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders (including their successors and assigns).
10.5 NOTICE OF DEFAULT.
No Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless such Agent has received
notice from a Lender or a Credit Party referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that such Agent receives such a notice, such
Agent shall give prompt notice thereof to the other Agents and to the Lenders.
The Agents shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither any Agent nor any
officers, directors, employees, agents, attorneys-in-fact or affiliates of any
Agent has made any representations or warranties to it and that no act by the
Agents or any affiliate thereof hereinafter taken, including any review of the
affairs of any Credit Party or any of their respective Affiliates, shall be
deemed to constitute any representation or warranty by any Agent to any Lender.
Each Lender represents to the Agents that it has, independently and without
reliance upon the Agents or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower, the other
Credit Parties or their respective Affiliates and made its own decision to make
its Loans hereunder and other
95
<PAGE> 66
financial accommodations hereunder and enter into this Credit Agreement. Each
Lender also represents that it will, independently and without reliance upon
the Agents or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Credit Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower, the other
Credit Parties and their respective Affiliates. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Agents
hereunder, the Agents shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, assets, property, financial or other conditions, prospects or
creditworthiness of the Borrower, the other Credit Parties or any of their
respective Affiliates which may come into the possession of the Agents or any
of their officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7 INDEMNIFICATION.
The Lenders agree to indemnify each Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), ratably according to their respective Commitments
(or if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Obligations and Participation
Interests of the Lenders), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the final payment of all of
the obligations of the Borrower hereunder and under the other Credit Documents)
be imposed on, incurred by or asserted against such Agent in its capacity as
such in any way relating to or arising out of this Credit Agreement or the
other Credit Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or any action
taken or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of such Agent. If any indemnity furnished to
an Agent for any purpose shall, in the opinion of such Agent, be insufficient
or become impaired, such Agent may call for additional indemnity and cease, or
not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this Section shall survive the
repayment of the Loans, LOC Obligations and other obligations under the Credit
Documents and the termination of the Commitments hereunder.
10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Agents and their affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Borrower, its
Subsidiaries or its Affiliates as though the Agents were not the Agents
hereunder. With respect to the Loans and all other obligations of the Borrower
hereunder and under the other Credit Documents, the Agents shall have the same
rights and powers under this Credit Agreement as any Lender and may exercise
the same as though it were not an Agent hereunder, and the terms "Lender" and
"Lenders" shall include the Agents in their individual capacity.
10.9 SUCCESSOR ADMINISTRATIVE AGENT.
Any Agent may, at any time, resign upon 20 days' written notice to the
Lenders, and may be removed, upon show of cause, by the Required Lenders upon
30 days' written notice to such Agent. Upon any such resignation or removal,
the Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the notice of resignation
or notice of removal, as appropriate, then the retiring Agent shall select a
successor Agent provided that in the case of the Administrative Agent or the
Collateral Agent, such successor is a Lender hereunder or a commercial bank
organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least $400,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations as Agent, as
appropriate, under this Credit Agreement and the other Credit Documents, and
the provisions of this Section 10 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Credit
Agreement.
96
<PAGE> 67
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to
the number set out below, (iii) the day following the day on which the same has
been delivered prepaid to a reputable national overnight air courier service,
or (iv) the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case to the respective
parties at the address, in the case of the Borrower, the Guarantors and the
Agents, set forth below, and, in the case of the Lenders, set forth on Schedule
11.1, or at such other address as such party may specify by written notice to
the other parties hereto:
if to the Borrower or any Guarantor:
RailWorks Corporation
6225 Smith Avenue
Suite 200
Baltimore, MD 21209
Attn: Michael R. Azarela
Telephone: (410) 580-6000
Telecopy: (410) 580-6099
if to the Administrative Agent or the Collateral Agent:
Bank of America, N.A.
101 N. Tryon Street
Independence Center, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attn: Gregg Newland
Agency Services
Telephone: (704) 386-4218
Telecopy: (704) 388-9436
with a copy to:
Bank of America, N.A.
10 Light Street
Sixteenth Floor
MD4-302-16-01
Baltimore, MD 21202-1435
Attn: Monica Brandes
Telephone: (410) 605-8019
Telecopy: (410) 539-7508
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of any Credit Party against obligations and
liabilities of such Person to such Lender hereunder, under the Notes, the other
Credit Documents or otherwise, irrespective of whether such Lender shall have
made any demand hereunder and although such obligations, liabilities or claims,
or any of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon
97
<PAGE> 68
the occurrence of an Event of Default even though such charge is made or
entered on the books of such Lender subsequent thereto. Any Person purchasing a
participation in the Loans and Commitments hereunder pursuant to Section 3.14
or Section 11.3(d) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that, except as expressly provided
herein, none of the Credit Parties may assign or transfer any of its interests
without prior written consent of the Lenders; provided further that the rights
of each Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth in this Section 11.3,
provided however that nothing herein shall prevent or prohibit any Lender from
(i) pledging its Loans hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank, (ii) granting
assignments or selling participations in such Lender's Loans and/or Commitments
hereunder to its parent company and/or to any Affiliate or Subsidiary of such
Lender or (iii) with respect to any Tranche B Term Lender which is a fund that
invests in bank loans, pledging (without the consent of any Agent or the
Borrower) all or any portion of its rights in connection with the Credit
Agreement and the other Credit Documents to the trustee under the indenture to
which such fund is a party in support of its obligations to such trustee for
the benefit of the applicable trust beneficiaries, provided that any
foreclosure or other exercise of remedies by such custodian, trustee, agent or
other third party shall be subject to the provisions of the Credit Agreement
and the other Credit Documents.
(b) Assignments. Each Lender may assign all or a portion of its
rights and obligations hereunder (including, without limitation, all or a
portion of its ratable share of Obligations and its Commitments), pursuant to
an assignment agreement substantially in the form of Schedule 11.3(b), to (i) a
Lender, (ii) an affiliate of a Lender, (iii) any fund that invests in bank
loans and is managed by an investment advisor to a Lender or an affiliate of
such investment advisor, or (iv) any other Person that (A) is a bank, financial
institution, commercial lender or institutional investor, (B) such Person shall
be reasonably acceptable to the Administrative Agent, and (C) so long as no
Default or Event of Default has occurred and is continuing, such Person shall
be reasonably acceptable to the Borrower (the consent of the Borrower not to be
unreasonably withheld or delayed); provided that (i) any such assignment (other
than any assignment to (I) a Lender, (II) an affiliate of a Lender and (III)
any fund that invests in bank loans and is managed by an investment advisor to
a Lender or an affiliate of such investment advisor) shall be in a minimum
aggregate amount of $5,000,000 (or, if less, the remaining amount of the
Commitments being assigned by such Lender); and (ii) each such assignment shall
be of a constant, not varying, percentage of all such Lender's rights and
obligations under this Credit Agreement. Any assignment hereunder shall be
effective upon delivery to the Administrative Agent of written notice of the
assignment together with a transfer fee of $3,500 payable to the Administrative
Agent for its own account from and after the later of (i) the effective date
specified in the applicable assignment agreement and (ii) the date of recording
of such assignment in the Register pursuant to the terms of subsection (c)
below; provided, however, that no such fee shall be payable in the case of an
assignment to another Lender, an affiliate of a Lender or any fund that invests
in bank loans and is managed by an investment advisor to a Lender or an
affiliate of such investment advisor; provided, further, that in the case of
contemporaneous assignments by a Lender to more than one fund managed by the
same investment advisor (which funds are not then Lenders), only a single
assignment fee of $3,500 shall be payable for all such contemporaneous
assignments. The assigning Lender will give prompt notice to the Administrative
Agent and the Borrower of any such assignment. Upon the effectiveness of any
such assignment (and after notice to, and (to the extent required pursuant to
the terms hereof), with the consent of, the Borrower as provided herein), the
assignee shall become a "Lender" for all purposes of this Credit Agreement and
the other Credit Documents and, to the extent of such assignment, the assigning
Lender shall be relieved of its obligations hereunder to the extent of the
Loans and Commitment components being assigned. Along such lines the Borrower
agrees that upon notice of any such assignment and surrender of the appropriate
Note or Notes, it will promptly provide to the assigning Lender and to the
assignee separate promissory notes in the amount of their respective interests
substantially in the form of the original Note (but with notation thereon that
it is given in substitution for and replacement of the original Note or any
replacement notes thereof). By executing and delivering an assignment agreement
in accordance with this Section 11.3(b), the assigning Lender thereunder and
the assignee thereunder shall be deemed to confirm to and agree with each other
and the other parties hereto as follows: (i) such assigning Lender warrants
that it is the legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim; (ii) except as set forth in clause
(i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
98
<PAGE> 69
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto or the financial condition of any
Credit Party or any of their respective Affiliates or the performance or
observance by any Credit Party of any of its obligations under this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such assignment
agreement; (iv) such assignee confirms that it has received a copy of this
Credit Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such assignment agreement; (v) such assignee will
independently and without reliance upon the Agents, such assigning Lender or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Credit Agreement and the other Credit Documents;
(vi) such assignee appoints and authorizes the Agents to take such action on
its behalf and to exercise such powers under this Credit Agreement or any other
Credit Document as are delegated to the Agents by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Credit Agreement and the other Credit
Documents are required to be performed by it as a Lender.
(c) Maintenance of Register. The Administrative Agent shall
maintain at one of its offices in Charlotte, North Carolina a copy of each
Lender assignment agreement delivered to it in accordance with the terms of
subsection (b) above and a register for the recordation of the identity of the
principal amount, type and Interest Period of each Loan outstanding hereunder,
the names, addresses and the Commitments of the Lenders pursuant to the terms
hereof from time to time (the "Register"). The Administrative Agent will make
reasonable efforts to maintain the accuracy of the Register and to promptly
update the Register from time to time, as necessary. The entries in the
Register shall be conclusive in the absence of manifest error and the Borrower,
the Agents and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Credit Agreement. The Register shall be available for inspection by the
Borrower and each Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Participations. Each Lender may sell, transfer, grant or
assign participations in all or a portion of such Lender's rights, obligations
or rights and obligations hereunder (including all or a portion of its
Commitments or its Loans); provided that (i) such selling Lender shall remain a
"Lender" for all purposes under this Credit Agreement (such selling Lender's
obligations under the Credit Documents remaining unchanged) and the participant
shall not constitute a Lender hereunder, (ii) no such participant shall have,
or be granted, rights to approve any amendment or waiver relating to this
Credit Agreement or the other Credit Documents except to the extent any such
amendment or waiver would (A) reduce the principal of or rate of interest on or
Fees in respect of any Loans in which the participant is participating, (B)
postpone the date fixed for any payment of principal (including extension of
the Termination Date or the date of any mandatory prepayment), interest or Fees
in which the participant is participating, (C) except as the result of or in
connection with a dissolution, merger or disposition of a Subsidiary permitted
under Section 8.3, release the Borrower or substantially all of the Guarantors
from its or their obligations under the Credit Documents, or (D) except as the
result of or in connection with a Divestiture permitted under Section 8.3(b),
release all or substantially all of the collateral, and (iii)
sub-participations by the participant (except to an affiliate, parent company
or affiliate of a parent company of the participant) shall be prohibited. In
the case of any such participation, the participant shall not have any rights
under this Credit Agreement or the other Credit Documents (the participant's
rights against the selling Lender in respect of such participation to be those
set forth in the participation agreement with such Lender creating such
participation) and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation, provided,
however, that such participant shall be entitled to receive additional amounts
under Sections 3.6, 3.9, 3.10, 3.11 and 11.2 on the same basis as if it were a
Lender.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of any Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between any Agent or any Lender and any of
the Credit Parties shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive
99
<PAGE> 70
of any rights or remedies which any Agent or any Lender would otherwise have.
No notice to or demand on any Credit Party in any case shall entitle the
Borrower or any other Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Agents or the Lenders to any other or further action in any circumstances
without notice or demand.
11.5 PAYMENT OF EXPENSES, ETC.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses (A) of the Agents in connection with the negotiation, preparation,
execution and delivery and administration of this Credit Agreement and the
other Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of Moore & Van
Allen, PLLC, special counsel to the Administrative Agent and the Collateral
Agent) and any amendment, waiver or consent relating hereto and thereto
including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure
relating to the performance by the Credit Parties under this Credit Agreement
and (B) of the Agents and the Lenders in connection with enforcement of the
Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Agents and each of the
Lenders); (ii) permit the Administrative Agent to perform inventory and
accounts receivable field audits at the Borrower's expense, provided that
unless an Event of Default shall be in existence the Borrower's obligation to
reimburse the Administrative Agent for such field audits shall be limited to
one such field audit each fiscal year; (iii) pay and hold each of the Lenders
harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the
Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Lender) to pay such taxes; and (iv) indemnify each Lender, its officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way
related to, or by reason of (A) any investigation, litigation or other
proceeding (whether or not any Lender is a party thereto) related to the
entering into and/or performance of any Credit Document or the use of proceeds
of any Loan or other Extensions of Credit or the consummation of any other
transactions contemplated in any Credit Document, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding or (B)
the presence or Release of any Materials of Environmental Concern at, under or
from any Property owned, operated or leased by the Borrower or any of its
Subsidiaries, or the failure by the Borrower or any of its Subsidiaries to
comply with any Environmental Law (but excluding, in the case of either of
clause (A) or (B) above, any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is
in writing entered into by, or approved in writing by, the Required Lenders and
the Credit Parties, provided, however, that:
(a) without the consent of each Lender affected thereby, neither
this Credit Agreement nor any of the other Credit Documents may be
amended to
(i) extend the final maturity of any Loan, or
any portion thereof; or extend the time of payment of any
reimbursement obligation, or any portion thereof, arising
from drawings under Letters of Credit; or extend or waive any
principal amortization payment of the Tranche B Term Loan, or
any portion thereof,
(ii) reduce the rate or extend the time of
payment of interest thereon or Fees hereunder (other than as
a result of waiving the applicability of any increase in
interest rates or Fees after the occurrence of an Event of
Default or on account of a failure to deliver financial
statements on a timely basis),
(iii) reduce or waive the principal amount of any
Loan, or any portion thereof, or reduce or waive the
principal amount of any reimbursement obligation, or any
portion thereof, arising from drawings under Letters of
Credit,
100
<PAGE> 71
(iv) increase the Commitment of a Lender over
the amount thereof in effect (it being understood and agreed
that a waiver of any Default or Event of Default shall not
constitute an increase in the Commitment of any Lender),
(v) except as the result of or in connection
with a dissolution, merger or disposition of a member of the
Consolidated Group permitted under Section 8.3, release any
Material Credit Party or all or substantially all of the
other Credit Parties from its or their obligations under the
Credit Documents,
(vi) except as the result of or in connection
with a Divestiture permitted under Section 8.3(b), release
all or substantially all of the collateral,
(vii) amend, modify or waive any provision of
this Section 11.6 or Section 3.6, 3.7, 3.8, 3.9, 3.10, 3.11,
3.13, 3.14, 3.15, 9.1(a), 11.2, 11.3, 11.5, 11.9 or 11.16,
(viii) reduce any percentage specified in, or
otherwise modify, the definition of Required Lenders, or
(ix) consent to the assignment or transfer by
the Borrower or any Guarantor of any of its rights and
obligations under (or in respect of) the Credit Documents
except as permitted thereby;
(c) without the consent of the Agents, no provision of Section 10
may be amended;
(d) without the consent of the Issuing Lender, no provision of
Section 2.1(b), 2.2(a)(ii), 2.6 or 3.5(b)(ii) may be amended;
(e) (i) without the consent of the Revolving Lenders holding
more than 50% of the Revolving Commitments, or if the Revolving
Commitments have been terminated, Lenders having more than 50% of the
aggregate principal amount of the Revolving Obligations outstanding
(taking into account in each case Participation Interests or
obligation to participate therein), extend the time for, or reduce the
amount, or otherwise alter the manner of application of proceeds in
respect of the Revolving Obligations on account of the mandatory
prepayment provisions of clauses (ii) through (iv), inclusive, of
Section 3.3(b) or the application provisions of Section 3.3(c).
(ii) without the consent of the Tranche B Term Lenders
holding more than 50% of the Tranche B Term Loan Commitments, extend
the time for, or reduce the amount, or otherwise alter the manner of
application of proceeds in respect of the Tranche B Term Loan on
account of the mandatory prepayment provisions of clauses (ii) through
(iv), inclusive, of Section 3.3(b) or the application provisions of
Section 3.3(c).
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding.
11.7 COUNTERPARTS.
This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary
in making proof of this Credit Agreement to produce or account for more than
one such counterpart.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
101
<PAGE> 72
11.9 SURVIVAL.
All indemnities set forth herein, including, without limitation, in
Section 2.6(h), 3.9, 3.11, 10.7 or 11.5 shall survive the execution and
delivery of this Credit Agreement, the making of the Loans, the issuance of the
Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the Commitments
hereunder, and all representations and warranties made by the Credit Parties
herein shall survive delivery of the Notes and the making of the Loans
hereunder.
11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(b) Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of the
State of North Carolina in Mecklenburg County or the State of New York in New
York County, or of the United States for the Western District of North Carolina
or for the Southern District of New York, and, by execution and delivery of
this Credit Agreement, each of the Credit Parties hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. Each of the Credit Parties further
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at the address set out for
notices pursuant to Section 11.1, such service to become effective three (3)
days after such mailing. Nothing herein shall affect the right of the Agents to
serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
(c) Each of the Credit Parties hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) hereof and hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(d) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENTS, THE
LENDERS, THE BORROWER AND THE OTHER CREDIT PARTIES HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.11 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 BINDING EFFECT; TERMINATION.
(a) This Credit Agreement shall become effective at such time on or
after the Closing Date when it shall have been executed by the Borrower, the
Guarantors and the Agents, and the Administrative Agent shall have received
copies hereof (telefaxed or otherwise) which, when taken together, bear the
signatures of each Lender, and thereafter this Credit Agreement shall be
binding upon and inure to the benefit of the Borrower, the Guarantors, the
Agents and each Lender and their respective successors and assigns.
102
<PAGE> 73
(b) The term of this Credit Agreement shall commence on the
effective date pursuant to subsection (a) above and shall continue until no
Loans, LOC Obligations or any other amounts payable hereunder or under any of
the other Credit Documents shall remain outstanding and until all of the
Commitments hereunder shall have expired or been terminated.
11.14 CONFIDENTIALITY.
The Agents and the Lenders agree to keep confidential (and to cause
their respective affiliates, officers, directors, employees, agents and
representatives to keep confidential) all written information, materials and
documents furnished to the Agents or any such Lender by or on behalf of any
Credit Party (whether before or after the Closing Date) which relates to the
Borrower or any of its Subsidiaries (the "Information"). Notwithstanding the
foregoing, each Agent and each Lender shall be permitted to disclose
Information (i) to its affiliates, officers, directors, employees, agents and
representatives in connection with its participation in any of the transactions
evidenced by this Credit Agreement or any other Credit Documents or the
administration of this Credit Agreement or any other Credit Documents, subject
to the provisions of this Section 11.14; (ii) to the extent required by
applicable laws and regulations or by any subpoena or similar legal process, or
requested by any Governmental Authority; (iii) to the extent such Information
(A) becomes publicly available other than as a result of a breach of this
Credit Agreement or any agreement entered into pursuant to clause (iv) below,
(B) becomes available to such Agent or such Lender on a non-confidential basis
from a source other than a Credit Party or (C) was available to such Agent or
such Lender on a non-confidential basis prior to its disclosure to such Agent
or such Lender by a Credit Party; (iv) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or participant
(or prospective assignee or participant) first specifically agrees in a writing
furnished to and for the benefit of the Credit Parties to be bound by the terms
of this Section 11.14; or (v) to the extent that the Borrower shall have
consented in writing to such disclosure. Nothing set forth in this Section
11.14 shall obligate any Agent or any Lender to return any materials furnished
by the Credit Parties.
11.15 SOURCE OF FUNDS.
Each of the Lenders hereby represents and warrants to the Borrower
that at least one of the following statements is an accurate representation as
to the source of funds to be used by such Lender in connection with the
financing hereunder:
(a) no part of such funds constitutes assets allocated
to any separate account maintained by such Lender in which any
employee benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds
constitutes assets allocated to any separate account maintained by
such Lender, such Lender has disclosed to the Borrower the name of
each employee benefit plan whose assets in such account exceed 10% of
the total assets of such account as of the date of such purchase (and,
for purposes of this subsection (b), all employee benefit plans
maintained by the same employer or employee organization are deemed to
be a single plan);
(c) to the extent that any part of such funds
constitutes assets of an insurance company's general account, such
insurance company has complied with all of the requirements of the
regulations issued under Section 401(c)(1)(A) of ERISA or such
insurance company meets the requirements of Department of Labor
Exemption 95-60; or
(d) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
As used in this Section 11.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.16 DESIGNATED SENIOR DEBT.
(a) The Borrower hereby (a) acknowledges and agrees that
the Indebtedness evidenced by this Agreement and the other Credit
Documents constitutes Senior Debt as defined in the Senior
Subordinated Note Indenture, (b) specifically designates the
Indebtedness evidenced by this Agreement and
103
<PAGE> 74
the other Credit Documents (specifically including all Obligations) as
"Designated Senior Debt" for all purposes, including without
limitation for purposes of the Senior Subordinated Indenture and (c)
agrees that it will not designate any other Indebtedness incurred by
them as "Designated Senior Debt" without the prior written consent of
the Required Lenders.
(b) Pursuant to the last paragraph of the definition of
"Permitted Indebtedness" set forth in the Senior Subordinated Note
Indenture, the Borrower hereby classifies the Revolving Commitments,
and all Revolving Obligations incurred thereunder, as the
"Indebtedness" permitted to be incurred pursuant to clause (ii) of the
definition of "Permitted Indebtedness" to the extent that the
Revolving Obligations do not exceed the maximum principal amount of
"Indebtedness" permitted thereunder. The Borrower hereby represents
and warrants that it has not classified any other "Indebtedness" as
"Permitted Indebtedness" pursuant to clause (ii) of the definition of
"Permitted Indebtedness", other than Indebtedness being refinanced
with the proceeds of the Tranche B Term Loan and the initial Revolving
Obligation. The Borrower agrees that it will not hereafter classify
any "Indebtedness" pursuant to clause (ii) of the definition of
"Permitted Indebtedness", other than Revolving Obligations, unless and
until the Credit Agreement has terminated and all Revolving
Obligations have been paid in full. The aggregate principal amount of
"Permitted Indebtedness" permitted under clause (ii) of the definition
thereof has not been reduced by any required permanent repayments
required under any credit agreement to which the Borrower is or has
been a party since the date of the Senior Subordinated Notes
Indenture.
11.17 UCC FINANCING STATEMENTS FILINGS; FURTHER ASSURANCES.
(a) UCC Financing Statements. Pursuant to the Security
Agreement, the Credit Parties have granted to the Collateral Agent,
for the benefit of the Lenders, a security interest in certain of
their personal property. Because of the number of Credit Parties and
the dispersed locations of their tangible personal property, the
Collateral Agent would need to file a considerable number of UCC
financing statements to perfect its security interest in their
tangible personal property. Without limiting the security interests
granted pursuant to the Security Agreement or the right of the
Collateral Agent and the Lenders to take additional action to perfect
the security interests granted pursuant to the Security Agreement, the
Borrower has requested that the Collateral Agent and the Lenders limit
the filing of UCC financing statements in order to reduce the filing
fees and recording taxes payable by the Borrower. In order to
accommodate the Borrower's request to reduce filing fees and recording
taxes, the Collateral Agent and the Lenders agree that on the Closing
Date the Collateral Agent shall file UCC financing statements only in
those locations identified on Schedule 11.17, provided that the
Collateral Agent and the Lenders shall have the right at any time in
their sole discretion to request that the Credit Parties take such
actions, including the filing of additional UCC financing statements
in additional locations, as the Collateral Agent reasonably deems
necessary or appropriate to perfect or maintain the security interests
in the personal property of the Credit Parties. The provisions of this
Section 11.17(a) are solely for the benefit of the Agents and the
Lenders, and none of the Credit Parties shall have any rights as a
third party beneficiary of the provisions hereof. The provisions of
this Section 11.17(a) are not intended to, and shall not be construed
to, in any way limit or otherwise affect the security interests of the
Collateral Agent, for the ratable benefit of the Lenders, in the
Collateral. Rather, the provisions of this Section 11.17(a) are
intended only to evidence an agreement among the Agents and the
Lenders regarding the filing of financing statements on the Closing
Date to perfect the security interest of the Collateral Agent, for the
ratable benefit of the Lenders, in the Collateral.
(b) Further Assurances. Each Credit Party agrees to
execute and deliver to the Collateral Agent such agreements,
assignments or instruments as the Collateral Agent may reasonably
request and do all such other things as the Collateral Agent may
reasonably deem necessary or appropriate to perfect and maintain the
security interests of the Collateral Agent in the Collateral,
including such financing statements (including continuation
statements) or amendments thereof or supplements thereto or other
instruments as the Collateral Agent may from time to time reasonably
request.
104
<PAGE> 75
11.18 CONFLICT.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document, on
the other hand, this Credit Agreement shall control.
[Signature Page to Follow]
105
<PAGE> 76
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Credit Agreement to be duly executed and delivered as of
the date first above written.
BORROWER: RAILWORKS CORPORATION,
a Delaware corporation
By:
--------------------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS: ALPHA-KEYSTONE ENGINEERING, INC.,
a Pennsylvania corporation
ANNEX RAILROAD BUILDERS, INC.,
an Indiana corporation
BIRMINGHAM WOOD, INC.,
an Alabama corporation
COMSTOCK HOLDINGS INC.,
a Delaware corporation
COMTRAK CONSTRUCTION, INC.,
a Georgia corporation
CONDON BROTHERS, INC.,
a Washington corporation
CPI CONCRETE PRODUCTS, INCORPORATED,
a Tennessee corporation
EARL CAMPBELL CONSTRUCTION COMPANY, INC.,
a Texas corporation
FCM RAIL, LTD.,
a Michigan corporation
GANTREX CORPORATION,
a Pennsylvania corporation
H.P. MCGINLEY, INC.,
a Pennsylvania corporation
IMPULSE ELECTRIC ENTERPRISES OF NEW YORK, INC.,
a New York corporation
KENNEDY RAILROAD BUILDERS, INC.,
a Pennsylvania corporation
L.K. COMSTOCK & COMPANY, INC.,
a New York corporation
M-TRACK ENTERPRISES, INC.,
a New York corporation
By:
--------------------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President
of each of the foregoing Guarantors
[Signature Pages Continue]
106
<PAGE> 77
MCCORD TREATED WOOD, INC.,
an Alabama corporation
MERIT RAILROAD CONTRACTORS, INC.,
a Missouri corporation
MIDWEST CONSTRUCTION SERVICES, INC. ,
an Indiana corporation
MIDWEST RAILROAD CONSTRUCTION & MAINTENANCE
CORPORATION OF WYOMING, a Wyoming corporation
MINNESOTA RAILROAD SERVICE, INC.,
a Tennessee corporation
NEOSHO ASIA, INC.,
a Kansas corporation
NEOSHO CENTRAL AMERICA, INC.,
a Kansas corporation
NEOSHO CONSTRUCTION COMPANY, INCORPORATED,
a Kansas corporation
NEOSHO CONTRACTORS, INC.,
a Wyoming corporation
NEOSHO INCORPORATED,
a Kansas corporation
NEOSHO INTERNATIONAL, INC.,
a Kansas corporation
NEW ENGLAND RAILROAD CONSTRUCTION CO., INC.,
a Connecticut corporation
NORTHERN RAIL SERVICE AND SUPPLY COMPANY, INC.,
a Michigan corporation
RAILCORP, INC.,
an Ohio corporation
RAILROAD SERVICE, INC.,
a Nevada corporation
RAILWORKS RAIL SERVICES, INC.,
a Kansas corporation
RWKS TRANSIT, INC.,
a New York corporation
SHELDON ELECTRIC, INC.,
a Delaware corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
TWIGG CORPORATION,
a Maryland corporation
By:
--------------------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President
of each of the foregoing Guarantors
[Signature Pages Continue]
107
<PAGE> 78
U.S. RAILWAY SUPPLY, INC.,
an Indiana corporation
U.S. TRACKWORKS, INC.,
a Michigan corporation
V&R ELECTRICAL CONTRACTORS, INC.,
a New York corporation
WM. A. SMITH CONSTRUCTION CO., INC.,
a Texas corporation
WOOD WASTE ENERGY, INC.,
a Virginia corporation
W. T. BYLER CO., INC.,
a Texas corporation
By:
--------------------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President
of each of the foregoing Guarantors
F&V METRO RW, INC.,
a Delaware corporation
RAILWORKS CANADA, INC.
a Delaware corporation
By:
--------------------------------------------------
Name: John P. Nuzzo
Title: Assistant Secretary
of each of the foregoing Guarantors
By:
--------------------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President
of each of the foregoing Guarantors
DURA-WOOD LLC,
a Delaware limited liability company
By: MCCORD TREATED WOOD, INC.,
an Alabama corporation, its managing member
By:
-----------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President
[Signature Pages Continue]
108
<PAGE> 79
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By:
--------------------------------------------------
Name:
Title:
[other Lenders]
By:
--------------------------------------------------
Name:
Title:
109
<PAGE> 1
EXHIBIT 10.43
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT, dated as of April 28,
2000 (as amended and modified from time to time, this "Agreement"), by and among
the Persons identified as "Grantors" on the signature pages hereto and such
other Persons as may become Grantors after the date hereof (the "Grantors") and
BANK OF AMERICA, N.A., as collateral agent (in such capacity, the "Collateral
Agent") for the lenders from time to time party to the Credit Agreement
described below and certain Affiliates of such lenders identified herein (the
"Lenders"), amends and restates that certain Amended and Restated Security
Agreement dated as of August 5, 1999 by and among the parties hereto.
WITNESSETH
WHEREAS, a $105 million revolving credit facility (the "Existing Credit
Facility") was established in favor of RailWorks Corporation, a Delaware
corporation (the "Borrower"), pursuant to the terms of that Amended and Restated
Credit Agreement dated as of August 5, 1999 (as amended and modified, the
"Existing Credit Agreement") among the Borrower, the Subsidiaries of the
Borrower identified therein, the lenders identified therein, First Union
National Bank, as Documentation Agent, Bank of America Canada, as Canadian
Administrative Agent, and Bank of America, N.A., as Domestic Administrative
Agent;
WHEREAS, pursuant to that Amended and Restated Credit Agreement dated
as of the date hereof (as amended and modified from time to time, the "Credit
Agreement") among the Borrower, certain Subsidiaries of the Borrower identified
therein, the lenders identified therein, First Union National Bank, as
Documentation Agent, and Bank of America, N.A., as Administrative Agent, the
Lenders have agreed to provide an amended and restated credit facility to
replace, refinance and increase the Existing Credit Facility;
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective loans and
extensions of credit to the Borrower under the Credit Agreement that the
Grantors shall have executed and delivered this Agreement to the Collateral
Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective loans and extensions of credit thereunder, the
Grantors hereby agree with the Collateral Agent, for the ratable benefit of the
Lenders, as follows:
SECTION 12. Defined Terms.
12.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings provided in
the Credit Agreement, and the following terms which are defined in the
Uniform Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Accounts, Chattel Paper, Deposit
Accounts, Documents, Equipment, Farm Products, Fixtures, General
Intangibles, Instruments, Inventory, Investment Property, Minerals and
Proceeds. For purposes of this Agreement, the term "Lender" shall
include any affiliate of any Lender which has entered into a Hedging
Agreement with any Grantor to the extent permitted by the Credit
Agreement.
(b) The following terms shall have the following
meanings:
"Collateral": as defined in Section 2 of this Agreement.
"Collateral Account": any collateral account established by
the Collateral Agent as provided in Section 3.3 hereof or Section 6.2
hereof.
"Copyright License": any written agreement, naming any Grantor
as licensor, granting any right under any Copyright including, without
limitation, any thereof referred to in Schedule 3 hereto.
110
<PAGE> 2
"Copyrights": (a) all registered United States copyrights in
all Works, now existing or hereafter created or acquired, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, registrations,
recordings and applications in the United States Copyright office
including, without limitation, any thereof referred to in Schedule 3
hereto, and (b) all renewals thereof including, without limitation, any
thereof referred to in Schedule 3 hereto.
"Patent License": any written agreement providing for the
grant by or to a Grantor of any right to manufacture, use or sell any
invention covered by a Patent, including, without limitation, any
thereof referred to in Schedule 3 hereto.
"Patents": (a) all letters patent of the United States or any
other country and all reissues and extensions thereof, including,
without limitation, any letters patent referred to in Schedule 3
hereto, and (b) all applications for letters patent of the United
States or any other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any
thereof referred to in Schedule 3 hereto.
"Secured Obligations": the collective reference to all of the
obligations of the Grantors to the Lenders (including the Issuing
Lender) and the Agents, whenever arising, under the Credit Agreement or
any of the other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a Bankruptcy Event with
respect to any Grantor, regardless of whether such interest is an
allowed claim under the Bankruptcy Code), howsoever evidenced, created,
incurred or acquired, whether primary, secondary, direct, contingent,
or joint and several, including, without limitation, all liabilities
arising under Hedging Agreements relating to the Obligations to the
extent permitted under the Credit Agreement, and all obligations and
liabilities incurred in connection with collecting and enforcing the
foregoing.
"Trademark License": any written agreement providing for the
grant by or to a Grantor of any right to use any Trademark, including,
without limitation, any thereof referred to in Schedule 3 hereto.
"Trademarks": (a) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos and other source or business identifiers,
and the goodwill associated therewith, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule 3 hereto, and (b) all renewals thereof.
"Uniform Commercial Code": the Uniform Commercial Code as from
time to time in effect in the State of New York.
"Work": any work which is subject to copyright protection
pursuant to Title 17 of the United States Code.
12.2 Other Definitional Provisions.
(a) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 13. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Secured Obligations, each of the
Grantors hereby grants to the Collateral Agent, for the ratable benefit of the
Lenders, a security interest in all of the following property now owned or at
any time hereafter acquired by such Grantor or in which such Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"):
(a) all Accounts;
111
<PAGE> 3
(b) all cash and Cash Equivalents maintained on deposit
with the Collateral Agent;
(c) all Chattel Paper;
(d) all Copyrights;
(e) all Copyright Licenses;
(f) all Deposit Accounts;
(g) all Documents;
(h) all Equipment;
(i) all Fixtures;
(j) all General Intangibles;
(k) all Instruments;
(l) all Inventory;
(m) all Investment Property;
(n) all Patents;
(o) all Patent Licenses;
(p) all Trademarks;
(q) all Trademark Licenses;
(r) all books, records, ledger cards, files,
correspondence, computer programs, tapes, disks, and related
data processing software (owned by such Grantor or in which it
has an interest) that at any time evidence or contain
information relating to any Collateral or are otherwise
necessary or helpful in the collection thereof or realization
thereupon; and
(s) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing.
The Grantors and the Collateral Agent, on behalf of the Lenders, hereby
acknowledge and agree that the security interest created hereby in the
Collateral (i) constitutes continuing collateral security for all of the Secured
Obligations, whether now existing or hereafter arising, and (ii) is not to be
construed as an assignment of any Copyrights, Copyright Licenses, Patents,
Patent Licenses, Trademarks or Trademark Licenses. The Grantors and the
Collateral Agent, on behalf of the Lenders, hereby further agree that this
Agreement shall not constitute an assignment of, or a grant of security interest
in, any contract or other agreement to which any Grantor is a party if such
assignment or grant of a security interest is prohibited by the terms of such
contract or other agreement.
SECTION 14. Provisions Relating to Accounts.
14.1 Grantors Remain Liable under Accounts. Anything herein to the
contrary notwithstanding, each of the Grantors shall remain liable under each of
its Accounts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise to each such Account. Neither any Agent nor any Lender
shall have any obligation or liability under any Account (or any agreement
giving rise thereto) by reason of or arising out of this Agreement or the
receipt by any Agent or any Lender of any payment relating to such Account
pursuant hereto, nor shall any Agent or any Lender be obligated in any manner to
perform any of the obligations of a Grantor under or pursuant to any Account (or
any agreement giving rise thereto), to make any payment, to make any inquiry as
to the nature or the sufficiency of any
112
<PAGE> 4
payment received by it or as to the sufficiency of any performance by any party
under any Account (or any agreement giving rise thereto), to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled
at any time or times.
14.2 Analysis of Accounts. The Collateral Agent shall have the
right, once during each calendar year or at any time after the occurrence and
during the continuation of an Event of Default, to make test verifications of
the Accounts in any manner and through any medium that it reasonably considers
advisable, and the Grantors shall furnish all such assistance and information as
the Collateral Agent may reasonably require in connection with such test
verifications. At any time and from time to time, upon the Collateral Agent's
request and at the expense of the Grantors, the Grantors shall cause independent
public accountants or others satisfactory to the Collateral Agent to furnish to
the Collateral Agent reports showing reconciliations, aging and test
verifications of, and trial balances for, the Accounts. After the occurrence and
during the continuation of an Event of Default, the Collateral Agent in its own
name or in the name of others may communicate with account debtors on the
Accounts to verify with them to the Collateral Agent's satisfaction the
existence, amount and terms of any Accounts.
14.3 Collections on Accounts.
(a) The Collateral Agent hereby authorizes the Grantors to collect
the Accounts, provided that the Collateral Agent may terminate said authority at
any time after the occurrence and during the continuation of an Event of
Default. If required by the Collateral Agent at any time after the occurrence
and during the continuation of an Event of Default, any payments of Accounts,
when collected by the Grantors, (i) shall be forthwith (and, in any event,
within two (2) Business Days) deposited by the Grantors in a Collateral Account
maintained under the sole dominion and control of the Collateral Agent, subject
to withdrawal by the Collateral Agent for the account of the Lenders only as
provided in Section 6.3 hereof, and (ii) until so turned over, shall be held by
the Grantors in trust for the Collateral Agent and the Lenders, segregated from
other funds of the Grantors.
(b) Each such deposit of Proceeds of Accounts shall be accompanied
by a report identifying in reasonable detail the nature and source of the
payments included in the deposit.
(c) At the Collateral Agent's reasonable request after the
occurrence and during the continuation of an Event of Default, the applicable
Grantor shall deliver to the Collateral Agent copies of all material documents
in its possession or control (or as to which they have a right or ability to
get) evidencing, and relating to, the agreements and transactions which gave
rise to the Accounts.
SECTION 15. Representations and Warranties. Each of the Grantors hereby
represents and warrants to the Collateral Agent and the Lenders that:
15.1 Title; No Other Liens. Except for Permitted Liens, the Grantor
owns each item of the Collateral free and clear of any and all Liens or claims
of others. No security agreement, financing statement or other public notice
with respect to all or any part of the Collateral is on file or of record in any
public office, except such as have been filed in favor of the Collateral Agent,
for the ratable benefit of the Lenders, pursuant to this Agreement and except
such as have been filed in connection with Permitted Liens.
15.2 Perfected First Priority Liens. The security interests granted
in the Collateral are prior to all other Liens on the Collateral in existence on
the date hereof except for Permitted Liens and are enforceable as such against
all creditors of and purchasers from the Grantor.
15.3 Chief Executive Office. The Grantor's chief executive office
and chief place of business, and the place where it keeps its books and records,
is located at the address shown on Schedule 1 hereto.
15.4 Inventory. Set forth on Schedule 2 hereto are locations,
including street address and state, where at least eighty percent (80%) of the
inventory of the Grantors is located. Other than any Grantor which engages in
wood treatment, no Grantor holds any Inventory pursuant to consignment, sale or
return, sale on approval or similar arrangement.
15.5 Ownership. Each Grantor is the legal and beneficial owner of
its Collateral and has the right to pledge, sell, assign or transfer the same.
113
<PAGE> 5
15.6 Farm Products. None of the Collateral constitutes or is the
Proceeds of Farm Products.
15.7 Minerals. None of the Collateral constitutes or is the
Proceeds of Minerals.
15.8 Copyrights, Patents and Trademarks.
(a) Schedule 3 hereto includes all Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks and Trademark Licenses owned by the Grantor
in its own name.
(b) To the best of the Grantor's knowledge, each material
Copyright, Patent and Trademark of the Grantor is valid, subsisting, unexpired,
enforceable and has not been abandoned.
(c) No Copyright, Patent or Trademark of the Grantor is the
subject of any licensing or franchise agreement.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of any
material Copyright, Patent or Trademark of the Grantor.
(e) No action or proceeding is pending seeking to limit, cancel or
question the validity of any material Copyright, Patent or Trademark of the
Grantor. No action or proceeding is pending which, if adversely determined,
would have a material adverse effect on the value of any material Copyright,
Patent or Trademark of the Grantor.
SECTION 16. Covenants. Each of the Grantors covenants and agrees with
the Collateral Agent and the Lenders that, from and after the date of this
Agreement until the Secured Obligations have been paid in full and the
Commitments have been terminated:
16.1 Maintenance of Perfected Security Interest; Further
Documentation.
(a) The Grantor shall maintain the security interest created by
this Agreement as a perfected security interest subject only to Permitted Liens
and shall defend such security interest against claims and demands of all
Persons, other than Permitted Liens.
(b) At any time and from time to time, upon the written request of
the Collateral Agent, and at the sole expense of the Grantor, the Grantor will
promptly and duly execute and deliver such further instruments and documents and
take such further action (including, without limitation all actions required
under the Federal Assignment of Claims Act or any similar state statute, filings
in respect of Copyrights with the United States Copyright Office and filings in
respect of Trademarks and Patents with the United States Patent and Trademark
Office) as the Collateral Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, the filing of any
financing statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the security interests created hereby.
16.2 Changes in Locations, Name, etc. The Grantor will not:
(a) change the location of its chief executive office and chief
place of business or the location at which it maintains its books and records
from that specified on Schedule 1 hereto, unless it shall have given the
Collateral Agent at least fifteen (15) days' prior written notice of such change
and any filings required under the Uniform Commercial Code in effect in the
affected jurisdiction to maintain the perfected security interest granted
pursuant to this Agreement shall have been made; or
(b) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Collateral Agent in connection
with this Agreement would become seriously misleading, unless (i) it shall have
given the Collateral Agent at least fifteen (15) days' prior written notice of
such change and (ii) any filings required under the Uniform Commercial Code in
effect in the affected jurisdiction to maintain the perfected security interest
granted pursuant to this Agreement shall have been made.
114
<PAGE> 6
(c) if at any time at least eighty percent (80%) of the inventory
of the Grantors is not located at the locations set forth on Schedule 2, then
the Borrower shall promptly provide to the Collateral Agent a written update to
Schedule 2 such that such schedule, as updated, identifies locations at which at
least eighty percent (80%) of the inventory of the Grantors is located.
(d) upon the request of the Collateral Agent, the Borrower shall,
within ten (10) Business Days of such request, provide to the Collateral Agent a
written schedule of the locations, including street address and state, where any
of the Collateral is located.
16.3 Further Identification of Collateral. The Grantor will furnish
to the Collateral Agent and the Lenders from time to time statements and
schedules further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Collateral Agent may reasonably
request, all in reasonable detail.
16.4 Delivery of Instruments/Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, the Grantor shall immediately deliver such
Instrument or Chattel Paper to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent, to be held as Collateral pursuant to this
Agreement.
16.5 Preservation of Collateral. The Grantor shall keep the
Collateral in good order, condition and repair and not use the Collateral in
violation of the provisions of this Agreement or any other agreement relating to
the Collateral or any policy insuring the Collateral or any applicable statute,
law, bylaw, rule, regulation or ordinance.
16.6 Indemnification. The Grantor agrees to pay, and to save the
Agents and the Lenders harmless from, any and all liabilities, costs and
expenses (including, without limitation, reasonable legal fees and expenses) (i)
with respect to, or resulting from any delay in paying, any and all excise,
sales or other taxes which may be payable or determined to be payable with
respect to any of the Collateral, (ii) with respect to, or resulting from, any
delay in complying with any Requirement of Law applicable to any of the
Collateral and (iii) in connection with any of the transactions contemplated by
this Agreement, except for any such liabilities which result from the gross
negligence or wilful misconduct of the Agents or the Lenders, respectively. In
any suit, proceeding or action brought by the Collateral Agent or any Lender
under any Account for any sum owing thereunder, the Grantor will save, indemnify
and keep the Collateral Agent and such Lender harmless from and against all
expense, loss or damage suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction or liability whatsoever of the account debtor
thereunder, arising out of a breach by the Grantor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at any time
owing to or in favor of such account debtor or its successors from the Grantor.
16.7 Covenants Relating to Accounts Upon Default. At any time after
the occurrence and during the continuation of an Event of Default:
(a) the amount represented by the Grantor to the Lenders
from time to time as owing by each account debtor or by all account
debtors in respect of its Accounts will at such time be the correct
amount in all material respects actually owing by such account debtor
or debtors thereunder;
(b) the Grantor will not amend, modify, terminate or
waive any agreement giving rise to an Account in any manner which would
reasonably be expected to materially adversely affect the value of the
Accounts as Collateral;
(c) the Grantor will not fail to exercise promptly and
diligently each and every material right which it may have under each
agreement giving rise to an Account (other than any right of
termination);
(d) the Grantor will not fail to deliver to the
Collateral Agent a copy of each material demand, notice or document
received by it relating in any way to any agreement giving rise to an
Account; and
(e) other than in the ordinary course of business as
generally conducted by the Grantor, the Grantor will not grant any extension of
the time of payment of any of the Accounts, compromise, compound or settle the
same for less than the full amount thereof, release, wholly or partially, any
Person liable for the payment thereof, or allow any credit or discount
whatsoever thereon.
115
<PAGE> 7
16.8 Covenants Relating to Copyrights.
(a) The Grantor will employ the Copyright for each material Work
with such notice of copyright as may be required by law to secure copyright
protection.
(b) With respect to any material Copyright of the Grantor, the
Grantor (i) will not do any act or knowingly omit to do any act whereby such
Copyright may become invalidated, (ii) will not do any act, or omit to do any
act, whereby such Copyright may become injected into the public domain; (iii)
will notify the Collateral Agent immediately if it knows that such Copyright may
become injected into the public domain or of any adverse determination or
development (including, without limitation, the institution of, or any such
determination or development in, any court or tribunal in the United States or
any other country) regarding the Grantor's ownership of such Copyright or its
validity; (iii) will take all necessary steps as it shall deem appropriate under
the circumstances, to maintain and pursue each application (and to obtain the
relevant registration) and to maintain each registration of such Copyright
including, without limitation, filing of applications for renewal where
necessary; and (iv) will promptly notify the Collateral Agent of any material
infringement of such Copyright of which it becomes aware and will take such
actions as it shall reasonably deem appropriate under the circumstances to
protect such Copyright, including, where appropriate, the bringing of suit for
infringement, seeking injunctive relief and seeking to recover any and all
damages for such infringement.
5.9 Covenants Relating to Patents and Trademarks.
(a) With respect to any material Trademark, the Grantor (either
itself or through licensees) will (i) continue to use such Trademark on each and
every trademark class of goods applicable to its current line as reflected in
its current catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for non-use, (ii)
maintain as in the past the quality of products and services offered under such
Trademark, (iii) employ such Trademark with the appropriate notice of
registration, (iv) not adopt or use any mark which is confusingly similar or a
colorable imitation of such Trademark unless the Collateral Agent, for the
ratable benefit of the Lenders, shall obtain a perfected security interest in
such mark pursuant to this Agreement, and (v) not (and not permit any licensee
or sublicensee thereof to) do any act or knowingly omit to do any act whereby
such Trademark may become invalidated.
(b) With respect to any material Patent, the Grantor will not do
any act, or omit to do any act, whereby such Patent may become abandoned or
dedicated.
(c) The Grantor will notify the Collateral Agent and the Lenders
immediately if it knows, or has reason to know, that any application or
registration relating to any material Patent or material Trademark may become
abandoned or dedicated, or of any adverse determination or development
(including, without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office
or any court or tribunal in any country) regarding the Grantor's ownership of
any material Patent or material Trademark or its right to register the same or
to keep and maintain the same.
(d) The Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, or any similar office or agency in any other country or
any political subdivision thereof, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of its
material Patents and material Trademarks, including, without limitation, filing
of applications for renewal, affidavits of use and affidavits of
incontestability.
(e) In the event that any material Patent or material Trademark is
infringed, misappropriated or diluted by a third party, the Grantor shall
promptly report such event to the Collateral Agent and shall promptly take such
actions as the Grantor shall reasonably deem appropriate under the circumstances
to protect such Patent or Trademark, including, without limitation, where
appropriate, bringing of suit for infringement, misappropriation or dilution,
seeking injunctive relief and seeking to recover any and all damages for such
infringement, misappropriation or dilution.
5.10 New Patents, Copyrights and Trademarks. The Grantor shall
promptly provide the Collateral Agent with (i) a listing of all applications, if
any, for new Copyrights, Patents or Trademarks (together with a listing of the
issuance of registrations or letters
116
<PAGE> 8
on present applications), which new applications and issued registrations or
letters shall be subject to the terms and conditions hereunder, and (ii) such
duly executed documents as the Collateral Agent may reasonably request to
evidence the security interest in the Copyright, Patent or Trademark which is
the subject of such new application.
SECTION 17. Remedies.
17.1 Notice to Account Debtors. Upon the request of the Collateral
Agent at any time after the occurrence and during the continuation of an Event
of Default, the Grantors shall notify account debtors on the Accounts that the
Accounts have been assigned to the Collateral Agent for the ratable benefit of
the Lenders and that payments in respect thereof shall be made directly to the
Collateral Agent.
17.2 Proceeds to be Turned Over To Collateral Agent. In addition to
the rights of the Collateral Agent and the Lenders specified in Section 3.3
hereof with respect to payments of Accounts, after the occurrence and during the
continuation of an Event of Default, all Proceeds received by the Grantors
consisting of cash and checks shall be held by the Grantors in trust for the
Collateral Agent and the Lenders, segregated from other funds of the Grantors,
and shall, forthwith upon receipt by the Grantors, be turned over to the
Collateral Agent in the exact form received by the Grantors (duly indorsed by
the Grantors to the Collateral Agent, if required) and held by the Collateral
Agent in a Collateral Account maintained under the sole dominion and control of
the Collateral Agent. All Proceeds, while held by the Collateral Agent in a
Collateral Account (or by the Grantors in trust for the Collateral Agent and the
Lenders), shall continue to be held as collateral security for all the Secured
Obligations and shall not constitute payment thereof until applied as provided
in Section 6.3 hereof.
17.3 Application of Proceeds. At such intervals as may be agreed
upon by the Grantors and the Collateral Agent, or, at any time after an Event of
Default shall have occurred and be continuing, at the Collateral Agent's
election, the Collateral Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Secured Obligations in the order set forth
in Section 3.15(c) of the Credit Agreement, and any part of such funds which the
Collateral Agent elects not so to apply and deems not required as collateral
security for the Secured Obligations shall be paid over from time to time by the
Collateral Agent to the Grantors or to whomsoever may be lawfully entitled to
receive the same. Any balance of such Proceeds remaining after the Secured
Obligations have been paid in full and the Commitments have been terminated
shall be paid over to the Grantors or to whomsoever may be lawfully entitled to
receive the same.
17.4 Code Remedies. At any time after an Event of Default shall
have occurred and be continuing, the Collateral Agent, on behalf of the Lenders,
may exercise, in addition to all other rights and remedies granted to them in
this Agreement and in any other instrument or agreement securing, evidencing or
relating to the Secured Obligations, all rights and remedies of a secured party
under the Uniform Commercial Code. Without limiting the generality of the
foregoing, the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Grantors or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Collateral Agent or any Lender shall have the
right upon any such public sale or sales, and, to the extent permitted by law,
upon any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in a Grantor,
which right or equity is hereby waived or released. The Grantors further agree,
at the Collateral Agent's request, to assemble the Collateral and make it
available to the Collateral Agent at places which the Collateral Agent shall
reasonably select, whether at the respective Grantor's premises or elsewhere.
The Collateral Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Collateral Agent and the Lenders hereunder,
including, without limitation, reasonable and actual attorneys' fees and
disbursements, to the payment in whole or in part of the Secured Obligations, in
the order set forth in Section 3.15(c) of the Credit Agreement, and only after
such application and after the payment by the Collateral Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Uniform Commercial Code, need the Collateral Agent account
for the surplus, if any, to each of the Grantors. To the extent permitted by
applicable law, the Grantors
117
<PAGE> 9
waive all claims, damages and demands it may acquire against the Collateral
Agent or any Lender arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if received
by the Grantors at least twenty (20) days before such sale or other disposition.
17.5 Deficiency. The Grantors shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Secured Obligations and the reasonable and actual
fees and disbursements of any attorneys employed by the Collateral Agent or any
Lender to collect such deficiency.
SECTION 18. Rights of Collateral Agent.
18.1 Powers. Each of the Grantors hereby irrevocably constitutes
and appoints the Collateral Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Grantor and in
the name of such Grantor or in its own name, from time to time in the Collateral
Agent's reasonable discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to secure the
Secured Obligations and grant security interests in the Collateral as
contemplated by this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Agent the power and right,
on behalf of such Grantor, without notice to or assent by such Grantor, at any
time after an Event of Default has occurred and is continuing, to do the
following:
(a) in the name of such Grantor or its own name, or
otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Account, Instrument or General Intangible or with
respect to any other Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or otherwise
reasonably deemed appropriate by the Collateral Agent for the purpose
of collecting any and all such moneys due under any Account, Instrument
or General Intangible or with respect to any other Collateral, whenever
payable; provided, however, that the Collateral Agent shall exercise
the powers set forth in this clause (a) with respect to any Account
only at any time when the authority of such Grantor to collect the
Accounts has been terminated pursuant to Section 3.3(a) hereof;
(b) to pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral, to effect, any repairs or any
insurance called for by the terms all or any part of the premiums
therefor and the costs thereof;
(c) to execute, in connection with the sale provided for
in Section 6.4 hereof, any endorsements, assignments or other
instruments of conveyance or transfer with respect to the Collateral;
and
(d) (i) to direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys due or to
become due thereunder directly to the Collateral Agent or as the
Collateral Agent shall direct; (ii) to ask or demand for, collect,
receive payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of or arising
out of any Collateral; (iii) to sign and indorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications, notices and other
documents in connection with any of the Collateral; (iv) to commence
and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any Collateral;
(v) to defend any suit, action or proceeding brought against such
Grantor with respect to any Collateral; (vi) to settle, compromise or
adjust any such suit, action or proceeding and, in connection
therewith, to give such discharges or releases as the Collateral Agent
may deem appropriate; (vii) to assign, or to grant licenses with
respect to, any Copyright, Patent or Trademark (along with any goodwill
relating thereto), on such terms and conditions as the Collateral Agent
shall in its sole discretion determine, and (viii) generally, to sell,
transfer, pledge and make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though the
Collateral Agent were the absolute owner thereof for all purposes, and
to do, at the Collateral Agent's option and such Grantor's expense, at
any time, or from time to time, all reasonable acts and things which
the Collateral Agent deems necessary to protect, preserve or realize
upon the Collateral and the Collateral Agent's security interests
therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do.
118
<PAGE> 10
The Collateral Agent agrees that, except after the occurrence and
during the continuance of an Event of Default, it will forbear from exercising
the power of attorney or any rights granted to the Collateral Agent pursuant to
this Section 7.1.
18.2 Performance by Collateral Agent of Grantors' Obligations. If
any of the Grantors fail to perform or comply with any of their agreements
contained herein, the Collateral Agent, at its option, but without any
obligation to do so, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
18.3 Grantors' Reimbursement Obligation. The expenses of the
Collateral Agent incurred in connection with actions undertaken as provided in
this Section 7, together with interest thereon at the rate per annum set forth
in Section 3.1 of the Credit Agreement for Base Rate Loans from the date of
payment by the Collateral Agent to the date reimbursed by the Grantors, shall be
payable by the Grantors to the Collateral Agent on demand.
18.4 Ratification; Power Coupled With An Interest. The Grantors
hereby ratify all that said attorneys shall lawfully do or cause to be done by
virtue hereof. All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until the Secured
Obligations have been paid in full and the Commitments have been terminated.
SECTION 19. Duty of Collateral Agent. The Collateral Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Uniform Commercial Code
or otherwise, shall be to deal with it in the same manner as the Collateral
Agent deals with similar property for its own account. Neither the Collateral
Agent, any Lender nor any of their respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Grantors or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Collateral Agent
hereunder are solely to protect the Collateral Agent's and the Lenders'
interests in the Collateral and shall not impose any duty upon the Collateral
Agent to exercise any such powers. The Collateral Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to the Grantors for any act or failure
to act hereunder, except for their own gross negligence or wilful misconduct.
SECTION 20. Execution of Financing Statements. Pursuant to Section
9-402 of the Uniform Commercial Code, each of the Grantors authorizes the
Collateral Agent to file financing statements with respect to the Collateral
without the signature of such Grantor in such form and in such filing offices as
the Collateral Agent reasonably determines appropriate to perfect the security
interests of the Collateral Agent and the Lenders under this Agreement. A
carbon, photographic or other reproduction of this Agreement shall be sufficient
as a financing statement for filing in any jurisdiction.
SECTION 21. Authority of Collateral Agent. The Grantors acknowledge
that the rights and responsibilities of the Collateral Agent under this
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, voting right
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Agreement shall, as between the Collateral Agent and the
Lenders, be governed by the Credit Agreement and the other Credit Documents,
but, as between the Collateral Agent and the Grantors, the Collateral Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and the Grantors shall be
under no obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 22. Notices. All notices shall be given or made in accordance
with Section 11.1 of the Credit Agreement.
SECTION 23. 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 24. Amendments in Writing; No Waiver; Cumulative Remedies.
119
<PAGE> 11
24.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Collateral Agent and the Grantors directly
affected thereby; provided that any provision of this Agreement may be waived by
the Collateral Agent in a letter or agreement executed by the Collateral Agent
or by facsimile transmission from the Collateral Agent.
24.2 No Waiver by Course of Conduct. Neither the Collateral Agent
nor any Lender shall by any act (except by a written instrument pursuant to
Section 13.1 hereof), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default or in any breach of any of the terms and conditions hereof. No
failure to exercise, nor any delay in exercising, on the part of the Collateral
Agent or any Lender, any right, power or privilege hereunder shall operate as a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Agent or any
Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or such
Lender would otherwise have on any future occasion.
24.3 Remedies Cumulative. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
SECTION 25. Section Headings. The section and subsection headings used
in this Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
SECTION 26. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of the Grantors and shall inure to the benefit
of the Collateral Agent and the Lenders and their successors and assigns,
provided that the Grantors may not assign any of their rights or Secured
Obligations under this Agreement without the prior written consent of the
Collateral Agent and any such purported assignment without such consent shall be
null and void.
SECTION 27. Term of Agreement. This Agreement and the Liens granted
hereunder shall remain in full force and effect until the Secured Obligations
have been paid in full and the Commitments have been terminated, at which time
the Collateral Agent shall release and terminate the Liens granted to it
hereunder. Upon such release and termination, (i) the Borrower shall be entitled
to the return, at its expense, of any and all funds in the Collateral Account
and such of the Collateral held by the Collateral Agent as shall not have been
sold or otherwise applied pursuant to the terms hereof and (ii) the Collateral
Agent will, at the Borrower's expense, execute and deliver to the Borrower such
UCC termination statements and other documents as the Borrower shall reasonably
request to evidence such termination.
SECTION 28. Counterparts. This Agreement may be executed in any number
of counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
SECTION 29. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND SECURED
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[Remainder of Page Intentionally Left Blank]
120
<PAGE> 12
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
GRANTORS: RAILWORKS CORPORATION,
a Delaware corporation
ALPHA-KEYSTONE ENGINEERING, INC.,
a Pennsylvania corporation
ANNEX RAILROAD BUILDERS, INC.,
an Indiana corporation
BIRMINGHAM WOOD, INC.,
an Alabama corporation
COMSTOCK HOLDINGS INC.,
a Delaware corporation
COMTRAK CONSTRUCTION, INC.,
a Georgia corporation
CONDON BROTHERS, INC.,
a Washington corporation
CPI CONCRETE PRODUCTS, INCORPORATED,
a Tennessee corporation
EARL CAMPBELL CONSTRUCTION COMPANY, INC.,
a Texas corporation FCM RAIL, LTD.,
a Michigan corporation
GANTREX CORPORATION,
a Pennsylvania corporation
H.P. MCGINLEY, INC.,
a Pennsylvania corporation
IMPULSE ELECTRIC ENTERPRISES OF NEW YORK, INC.,
a New York corporation
KENNEDY RAILROAD BUILDERS, INC.,
a Pennsylvania corporation
L.K. COMSTOCK & COMPANY, INC.,
a New York corporation
M-TRACK ENTERPRISES, INC.,
a New York corporation
By:
---------------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each of the
foregoing Guarantors
[Signature Pages Continue]
121
<PAGE> 13
MCCORD TREATED WOOD, INC.,
an Alabama corporation
MERIT RAILROAD CONTRACTORS, INC.,
a Missouri corporation
MIDWEST CONSTRUCTION SERVICES, INC. ,
an Indiana corporation
MIDWEST RAILROAD CONSTRUCTION & MAINTENANCE
CORPORATION OF WYOMING, a Wyoming corporation
MINNESOTA RAILROAD SERVICE, INC.,
a Tennessee corporation
NEOSHO ASIA, INC.,
a Kansas corporation
NEOSHO CENTRAL AMERICA, INC.,
a Kansas corporation
NEOSHO CONSTRUCTION COMPANY, INCORPORATED,
a Kansas corporation
NEOSHO CONTRACTORS, INC.,
a Wyoming corporation
NEOSHO INCORPORATED,
a Kansas corporation
NEOSHO INTERNATIONAL, INC.,
a Kansas corporation
NEW ENGLAND RAILROAD CONSTRUCTION CO., INC.,
a Connecticut corporation
NORTHERN RAIL SERVICE AND SUPPLY COMPANY, INC.,
a Michigan corporation
RAILCORP, INC.,
an Ohio corporation
RAILROAD SERVICE, INC.,
a Nevada corporation
RAILWORKS RAIL SERVICES, INC.,
a Kansas corporation
RWKS TRANSIT, INC.,
a New York corporation
SHELDON ELECTRIC, INC.,
a Delaware corporation
SOUTHERN INDIANA WOOD PRESERVING CO., INC.,
an Indiana corporation
TWIGG CORPORATION,
a Maryland corporation
By:
--------------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each of the
foregoing Guarantors
[Signature Pages Continue]
122
<PAGE> 14
U.S. RAILWAY SUPPLY, INC.,
an Indiana corporation
U.S. TRACKWORKS, INC.,
a Michigan corporation
V&R ELECTRICAL CONTRACTORS, INC.,
a New York corporation
WM. A. SMITH CONSTRUCTION CO., INC.,
a Texas corporation
WOOD WASTE ENERGY, INC.,
a Virginia corporation
W. T. BYLER CO., INC.,
a Texas corporation
By:
--------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each of
the foregoing Guarantors
F&V METRO RW, INC.,
a Delaware corporation
RAILWORKS CANADA, INC.
a Delaware corporation
By:
-------------------------------
Name: John P. Nuzzo
Title: Assistant Secretary of each of the
foregoing Guarantors
By:
--------------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each of
the foregoing Guarantors
DURA-WOOD LLC,
a Delaware limited liability company
By: MCCORD TREATED WOOD, INC.,
an Alabama corporation, its managing member
By:
-----------------------------
Name: Michael R. Azarela
Title: Executive Vice President
[Signature Pages Continue]
123
<PAGE> 15
COLLATERAL
AGENT: BANK OF AMERICA, N.A.,
as Collateral Agent
By:
----------------------------
Name:
Title:
124
<PAGE> 1
EXHIBIT 10.44
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of April 28, 2000
(as amended and modified from time to time, the "Pledge Agreement" or this
"Agreement"), by and among the Persons identified as "Pledgors" on the signature
pages hereto and such other Persons as may become Pledgors after the date hereof
(the "Pledgors") and BANK OF AMERICA, N.A., as collateral agent (in such
capacity, the "Collateral Agent") for the lenders from time to time party to the
Credit Agreement described below and certain Affiliates of such lenders
identified herein (the "Lenders"), amends and restates that certain Amended and
Restated Pledge Agreement dated as of August 5, 1999 by and among the parties
hereto.
W I T N E S S E T H
WHEREAS, a $105 million revolving credit facility (the "Existing Credit
Facility") was established in favor of RailWorks Corporation, a Delaware
corporation (the "Borrower"), pursuant to the terms of that Amended and Restated
Credit Agreement dated as of August 5, 1999 (as amended and modified, the
"Existing Credit Agreement") among the Borrower, the Subsidiaries of the
Borrower identified therein, the lenders identified therein, First Union
National Bank, as Documentation Agent, Bank of America Canada, as Canadian
Administrative Agent, and Bank of America, N.A., as Domestic Administrative
Agent;
WHEREAS, pursuant to that Amended and Restated Credit Agreement dated
as of the date hereof (as amended and modified from time to time, the "Credit
Agreement") among the Borrower, certain Subsidiaries of the Borrower identified
therein, the lenders identified therein, First Union National Bank, as
Documentation Agent, and Bank of America, N.A., as Administrative Agent, the
Lenders have agreed to provide an amended and restated credit facility to
replace, refinance and increase the Existing Credit Facility;
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective loans and
extensions of credit to the Borrower under the Credit Agreement that the
Pledgors shall have executed and delivered this Pledge Agreement to the
Collateral Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective loans and extensions of credit thereunder, the
Pledgors hereby agree with the Collateral Agent, for the ratable benefit of the
Lenders, as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them
in the Credit Agreement. For purposes of this Agreement, the term
"Lender" shall include any Affiliate of any Lender which has entered
into a Hedging Agreement with a Credit Party to the extent permitted by
the Credit Agreement.
(b) The following terms shall have the following
meanings:
"Collateral": the Pledged Stock and all Proceeds thereof.
"Collateral Account": any account established to hold money
Proceeds, maintained under the sole dominion and control of the
Collateral Agent, subject to withdrawal by the Collateral Agent for the
account of the Lenders as provided in Section 8(a) hereof.
"Issuer": each Person identified on Schedule 1 hereto as the
issuer of Pledged Stock.
"Pledged Stock": the shares of capital stock listed on
Schedule 1 hereto, together with all stock certificates, options or
rights of any nature whatsoever that may be issued or granted by any
Issuer to a Pledgor in respect of the Pledged Stock while this
Agreement is in effect.
125
<PAGE> 2
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code on the date hereof and, in any
event, shall include, without limitation, all dividends or other income
from the Pledged Stock, collections thereon or distributions with
respect thereto.
"Secured Obligations": the collective reference to all of the
obligations of the Credit Parties to the Lenders (including the Issuing
Lender) and the Agents, whenever arising, under the Credit Agreement or
any of the other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a Bankruptcy Event with
respect to any Credit Party, regardless of whether such interest is an
allowed claim under the Bankruptcy Code), howsoever evidenced, created,
incurred or acquired, whether primary, secondary, direct, contingent,
or joint and several, including, without limitation, all obligations
arising under Hedging Agreements relating to the Obligations to the
extent permitted under the Credit Agreement, and all obligations and
liabilities incurred in connection with collecting and enforcing the
foregoing.
"Securities Act": the Securities Act of 1933, as amended.
"Uniform Commercial Code": the Uniform Commercial Code from
time to time in effect in the State of New York.
(c) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. Each of the Pledgors
hereby delivers to the Collateral Agent, for the ratable benefit of the Lenders,
all the Pledged Stock and hereby grants to the Collateral Agent, for the ratable
benefit of the Lenders, a first priority security interest in the Collateral, as
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the Secured
Obligations.
3. Stock Powers. Concurrently with the execution hereof, each
Pledgor shall deliver to the Collateral Agent all certificates representing the
Pledged Stock, together with an undated stock power covering each such
certificate duly executed in blank.
4. Representations and Warranties. Each of the Pledgors
represents and warrants that:
(a) The shares of Pledged Stock constitute (i) 100% of
the issued and outstanding capital stock of all Domestic Subsidiaries
of the Pledgor and (ii) 66% of the issued and outstanding capital stock
entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding capital stock not
entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) of all Foreign Subsidiaries directly owned by the
Pledgor.
(b) All the shares of the Pledged Stock have been duly
and validly issued and are fully paid and nonassessable.
(c) The Pledgor is the record and beneficial owner of,
and has good and marketable title to, the Pledged Stock, free of any
and all Liens or options in favor of, or claims of, any other Person,
except the security interests created by this Agreement.
(d) Upon delivery to the Collateral Agent of the stock
certificates evidencing the Pledged Stock, the security interest
created by this Agreement will constitute a valid, perfected first
priority security interest in the Collateral, enforceable in accordance
with its terms against all creditors of the Pledgor and any Persons
purporting to purchase any Collateral from the Pledgor, except as
affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
126
<PAGE> 3
5. Covenants. Each of the Pledgors covenants and agrees with the
Collateral Agent and the Lenders that, from and after the date of this Agreement
until the Secured Obligations have been paid in full and the Commitments have
been terminated:
(a) If such Pledgor shall, as a result of its ownership
of the Pledged Stock, become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any shares of the Pledged Stock, or otherwise in respect
thereof, such Pledgor shall accept the same as the agent of the
Collateral Agent and the Lenders, hold the same in trust for the
Collateral Agent and the Lenders and deliver the same forthwith to the
Collateral Agent in the exact form received, together with an undated
stock power covering such certificate duly executed in blank by such
Pledgor, to be held by the Collateral Agent, subject to the terms
hereof, as additional collateral security for the Secured Obligations.
Any sums paid to the Pledgor upon or in respect of the Pledged Stock
upon the liquidation or dissolution of any Issuer shall be paid over to
the Collateral Agent to be held by it hereunder as additional
collateral security for the Secured Obligations, and in case any
distribution of capital shall be made on or in respect of the Pledged
Stock or any property shall be distributed upon or with respect to the
Pledged Stock pursuant to the recapitalization or reclassification of
the capital of the Issuer or pursuant to the reorganization thereof,
the property so distributed shall be delivered to the Collateral Agent
to be held by it hereunder as additional collateral security for the
Secured Obligations. If any sums of money or property so paid or
distributed in respect of the Pledged Stock shall be received by such
Pledgor, such Pledgor shall, until such money or property is paid or
delivered to the Collateral Agent, hold such money or property in trust
for the Lenders, segregated from other funds of such Pledgor, as
additional collateral security for the Secured Obligations.
(b) Without the prior written consent of the Collateral
Agent, such Pledgor will not (i) vote to enable, or take any other
action to permit, any Issuer to issue any stock or other equity
securities of any nature or to issue any other securities convertible
into or granting the right to purchase or exchange for any stock or
equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, (iii) create, incur or permit to exist any
Lien or option in favor of, or any claim of any Person with respect to,
any of the Collateral, or any interest therein, except Permitted Liens
or (iv) enter into any agreement or undertaking restricting the right
or ability of the Pledgor or the Collateral Agent to sell, assign or
transfer any of the Collateral.
(c) Such Pledgor shall maintain the security interest
created by this Agreement as a first priority, perfected security
interest and shall defend such security interest against claims and
demands of all Persons whomsoever except for Permitted Liens. At any
time and from time to time, upon the written request of the Collateral
Agent, and at the sole expense of such Pledgor, such Pledgor will
promptly and duly execute and deliver such further instruments and
documents and take such further actions as the Collateral Agent may
reasonably request for the purposes of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted.
If any amount payable under or in connection with any of the Collateral
shall be or become evidenced by any promissory note, other instrument
or chattel paper, such note, instrument or chattel paper shall be
immediately delivered to the Collateral Agent, duly endorsed in a
manner reasonably satisfactory to the Collateral Agent, to be held as
Collateral pursuant to this Agreement.
(d) Such Pledgor shall pay, and save the Collateral Agent
and the Lenders harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise, sales
or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement, except for any such
liabilities which result from the gross negligence or wilful misconduct
of the Collateral Agent or the Lenders, respectively.
6. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing and the Collateral Agent shall have given
notice to the Pledgors of the Collateral Agent's intent to exercise its
corresponding rights pursuant to Section 7 below, the Pledgors shall be
permitted to receive and retain all cash dividends, to the extent permitted in
the Credit Agreement, in respect of the Pledged Stock and to exercise all voting
127
<PAGE> 4
and corporate rights with respect to the Pledged Stock; provided, however, that
no vote shall be cast or corporate right exercised or other action taken which
would impair the Collateral in any material respect or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Credit Document.
7. Rights of the Lenders and the Collateral Agent.
(a) All money Proceeds received by the Collateral Agent
hereunder shall be turned over to the Pledgors unless an Event of
Default has occurred and is continuing, in which case such money
Proceeds shall be held by the Collateral Agent for the benefit of the
Lenders in a Collateral Account. All Proceeds while held by the
Collateral Agent in a Collateral Account (or by the Pledgors in trust
for the Collateral Agent and the Lenders) shall continue to be held as
collateral security for all the Secured Obligations and shall not
constitute payment thereof until applied as provided in Section 8(a)
hereof.
(b) At any time after an Event of Default shall have
occurred and be continuing, the Collateral Agent may, upon notice to
the Pledgors, exercise the following rights: (i) the Collateral Agent
shall have the right to receive any and all cash dividends paid in
respect of the Pledged Stock and make application thereof to the
Secured Obligations in the order set forth in Section 3.15(c) of the
Credit Agreement, and (ii) the Collateral Agent at its option may
register all shares of the Pledged Stock in the name of the Collateral
Agent or its nominee, and the Collateral Agent or its nominee may
thereafter exercise (A) all voting, corporate and other rights
pertaining to such shares of the Pledged Stock at any meeting of
shareholders of any Issuer or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or
options pertaining to such shares of the Pledged Stock as if it were
the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Stock upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer, or upon
the exercise by any Pledgor or the Collateral Agent of any right,
privilege or option pertaining to such shares of the Pledged Stock, and
in connection therewith, the right to deposit and deliver any and all
of the Pledged Stock with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as
the Collateral Agent may determine), all without liability except to
account for property actually received by it, but the Collateral Agent
shall have no duty to the Pledgors to exercise any such right,
privilege or option and shall not be responsible for any failure to do
so or delay in so doing.
8. Remedies.
(a) At any time after an Event of Default shall have
occurred and be continuing, at the Collateral Agent's election, the
Collateral Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Secured Obligations in the order
set forth in Section 3.15(c) of the Credit Agreement.
(b) At any time after an Event of Default shall have
occurred and be continuing, the Collateral Agent, on behalf of the
Lenders, may exercise, in addition to all other rights and remedies
granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights
and remedies of a secured party under the Uniform Commercial Code.
Without limiting the generality of the foregoing, the Collateral Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law
referred to below) to or upon the Pledgors or any other Person (all and
each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give an option or options to
purchase or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of the Collateral
Agent or any Lender or elsewhere upon such terms and conditions as it
may deem advisable and at such prices as it may deem best, for cash or
on credit or for future delivery without assumption of any credit risk.
The Collateral Agent or any Lender shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in any
Pledgor, which right or equity of redemption is hereby waived or
released. The Collateral Agent shall apply any Proceeds from time to
time held by it and the net proceeds of any
128
<PAGE> 5
such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind
incurred in respect thereof or incidental to the care or safekeeping of
any of the Collateral or in any way relating to the Collateral or the
rights of the Collateral Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements of
counsel to the Collateral Agent, to the payment in whole or in part of
the Secured Obligations, in such order as the Collateral Agent may
elect, and only after such application and after the payment by the
Collateral Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Uniform
Commercial Code, need the Collateral Agent account for the surplus, if
any, to any Pledgor. To the extent permitted by applicable law, each
Pledgor waives all claims, damages and demands it may acquire against
the Collateral Agent or any Lender arising out of the exercise by them
of any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall
be deemed reasonable and proper if given at least twenty (20) days
before such sale or other disposition. The Pledgors shall remain liable
for any deficiency if the proceeds of any sale or other disposition of
Collateral are insufficient to pay the Secured Obligations and the
reasonable and actual fees and disbursements of any attorneys employed
by the Collateral Agent or any Lender to collect such deficiency.
9. Registration Rights; Private Sales.
(a) If the Collateral Agent shall determine to exercise
its right to sell any or all of the Pledged Stock pursuant to Section 8
hereof, and if in the opinion of the Collateral Agent it is necessary
or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the
Pledgors will cause the Issuer thereof to (i) execute and deliver, and
cause the directors and officers of such Issuer to execute and deliver,
all such instruments and documents, and do or cause to be done all such
other acts as may be, in the opinion of the Collateral Agent, necessary
or advisable to register the Pledged Stock, or that portion thereof to
be sold, under the provisions of the Securities Act, (ii) to use its
best efforts to cause the registration statement relating thereto to
become effective and to remain effective for a period of one year from
the date of the first public offering of the Pledged Stock, or that
portion thereof to be sold, and (iii) to make all amendments thereto
and/or to the related prospectus which, in the opinion of the
Collateral Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of
the Securities and Exchange Commission applicable thereto. Each Pledgor
acknowledges and agrees to cause such Issuer to comply with the
provisions of the securities or "Blue Sky" laws of any and all
jurisdiction which the Collateral Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Pledgor recognizes that the Collateral Agent may
be unable to effect a public sale of any or all the Pledged Stock, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obligated to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. Each Pledgor agrees
that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed
to have been made in a commercially reasonable manner. The Collateral
Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the Issuer
thereof to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if such
Issuer agrees to do so.
(c) Each Pledgor further agrees to use its best efforts
to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Stock
pursuant to this Section 9 valid and binding and in compliance with any
and all other applicable Requirements of Law. Each Pledgor further
agrees that a breach of any of the covenants contained in this Section
9 will cause irreparable injury to the Collateral Agent and the
Lenders, that the Collateral Agent and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section 9 shall be
specifically enforceable against such Pledgor, and such Pledgor hereby
waives and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that no
Event of Default has occurred under the Credit Agreement.
129
<PAGE> 6
10. Irrevocable Authorization and Instruction to Issuer. Each
Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Collateral Agent in writing that (a) states
that an Event of Default has occurred and is continuing, and (b) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from such Pledgor, and such Pledgor agrees that each Issuer shall
be fully protected in so complying.
11. Collateral Agent's Appointment as Attorney-in-Fact.
(a) Each Pledgor hereby irrevocably constitutes and appoints the
Collateral Agent and any officer or agent of the Collateral Agent, with
full power of substitution, as it's true and lawful attorney-in-fact
with fully irrevocable power and authority in the place and stead of
such Pledgor and in the name of such Pledgor or in the Collateral
Agent's own name, from time to time in the Collateral Agent's
discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any
and all documents and instruments which may be necessary or desirable
to accomplish the purposes of this Agreement, including, without
limitation, any financing statements, endorsement, assignment or other
instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney
granted in Section 11(a) hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and
are irrevocable until the Secured Obligations have been paid in full
and the Commitments have been terminated.
12. Duty of Collateral Agent. The Collateral Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Uniform Commercial Code
or otherwise, shall be to deal with it in the same manner as the Collateral
Agent deals with similar securities and property for its own account, except
that the Collateral Agent shall have no obligation to invest funds held in any
Collateral Account and may hold the same as demand deposits. Neither the
Collateral Agent, any Lender nor any of their respective directors, officers,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Pledgor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof.
13. Execution of Financing Statements. Pursuant to Section 9-402
of the Uniform Commercial Code, each Pledgor authorizes the Collateral Agent to
file financing statements with respect to the Collateral without the signature
of such Pledgor in such form and in such filing offices as the Collateral Agent
reasonably determines appropriate to perfect the security interests of the
Collateral Agent under this Agreement. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement for
filing in any jurisdiction.
14. Authority of Collateral Agent. Each Pledgor acknowledges that
the rights and responsibilities of the Collateral Agent under this Agreement
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Collateral Agent and the Lenders, be
governed by the Credit Agreement and the other Credit Documents, but, as between
the Collateral Agent and such Pledgor, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and neither any Pledgor nor any
Issuer shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
15. Notices. All notices shall be given or made in accordance with
Section 11.1 of the Credit Agreement.
16. 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
130
<PAGE> 7
(a) None of the terms or provisions of this Agreement may
be waived, amended, supplemented or otherwise modified except by a
written instrument executed by the Pledgors and the Collateral Agent,
provided that any provision of this Agreement may be waived by the
Collateral Agent and the Lenders in a letter or agreement executed by
the Collateral Agent or by facsimile transmission from the Collateral
Agent.
(b) Neither the Collateral Agent nor any Lender shall by
any act (except by a written instrument pursuant to Section 17(a)
hereof), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising
on the part of the Collateral Agent or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by the Collateral Agent or
any Lender of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Collateral
Agent or such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
18. Section Headings. The section headings used in this Agreement
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Agreement shall be binding upon
the successors and assigns of the Pledgors and shall inure to the benefit of the
Collateral Agent and the Lenders and their successors and assigns, provided that
the Pledgors may not assign any of their rights or obligations under this
Agreement without the prior written consent of the Collateral Agent and any such
purported assignment without such prior written consent shall be null and void.
20. Term of Agreement. This Agreement and the Liens granted
hereunder shall remain in full force and effect until the Secured Obligations
have been paid in full and the Commitments have been terminated, at which time
the Collateral Agent shall release and terminate the Liens granted to it
hereunder. Upon such release and termination, (i) the Pledgors shall be entitled
to the return, at the Borrower's expense, of any and all funds in the Collateral
Account and such of the Collateral held by the Collateral Agent as shall not
have been sold or otherwise applied pursuant to the terms hereof and (ii) the
Collateral Agent will, at the Borrower's expense, execute and deliver to the
Borrower such UCC termination statements and other documents as the Borrower
shall reasonably request to evidence such termination.
21. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[Remainder of Page Intentionally Left Blank]
131
<PAGE> 8
IN WITNESS WHEREOF, the undersigned have caused this Pledge Agreement
to be duly executed and delivered as of the date first above written.
PLEDGORS: RAILWORKS CORPORATION,
a Delaware corporation
COMSTOCK HOLDINGS INC.,
a Delaware corporation
NEOSHO INCORPORATED,
a Kansas corporation
NEOSHO INTERNATIONAL, INC.,
a Kansas corporation
By:
----------------------------
Name: Michael R. Azarela
Title: Executive Vice President of each
of the foregoing Pledgors
F&V METRO RW, INC.,
a Delaware corporation
By:
----------------------------
Name: John P. Nuzzo
Title: Assistant Secretary
By:
----------------------------
Name: Michael R. Azarela
Title: Executive Vice President
RAILWORKS CANADA, INC.,
a Delaware corporation
By:
----------------------------
Name: John P. Nuzzo
Title: Assistant Secretary
By:
----------------------------
Name: Michael R. Azarela
Title: Executive Vice President
[Signature Pages Continue]
COLLATERAL AGENT: BANK OF AMERICA, N.A.,
as Collateral Agent
By:
--------------------------------------
Name:
Title:
132
<PAGE> 1
EXHIBIT 10.45
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of
the 1st day of January 2000, by and between Michael R. Azarela, an individual
resident of the State of New York ("Employee"), and RailWorks Corporation, a
Delaware corporation ("Employer").
W I T N E S S E T H
WHEREAS, the Employee has been employed by Employer pursuant
to an Amended and Restated Employment Agreement dated as of August 4, 1998
("Prior Agreement");
WHEREAS, Employer and Employee desire to amend the Prior
Agreement and restate it as so amended; and
WHEREAS, the Employee desires to be so employed by the
Employer, on the terms and conditions as contained herein.
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. EMPLOYMENT.
Subject to the terms hereof, Employer will employ Employee and
Employee hereby accepts such employment. The Employee shall serve as the
Executive Vice President and Chief Financial Officer of the Employer and shall
be a director of the Employer.
Subject to the terms and conditions of this Agreement, from
the date hereof, Employee agrees to devote substantially all of his business
time and best efforts to the performance of his job as Executive Vice President
and Chief Financial Officer of the Employer, subject to direction by the Board
of Directors of the Employer (the "Board of Directors"), as long as such
directions are consistent with the duties, responsibilities and authority
customarily given or required of chief financial officers generally, with the
Employee to report his activities regularly to the Board of Directors.
133
<PAGE> 2
SECTION 2. TERM OF EMPLOYMENT. The term of the Employee's
employment hereunder (the "Term") shall be from May 21, 1998, the commencement
date of the Prior Agreement, until the occurrence of any of the following
events:
(i) The death or total disability of Employee (total disability
meaning the failure to fully perform his normal required
services hereunder for a period of six (6) consecutive months
during any consecutive twelve (12) month period during the
term hereof, as determined by an independent medical doctor
jointly chosen by the Employee and the Employer) by reason of
mental or physical disability;
(ii) The termination by Employer of Employee's employment
hereunder, upon thirty (30) days prior written notice to
Employee, for "good cause", as reasonably determined by the
Board of Directors. For purposes of this Agreement, "good
cause" for termination of Employee's employment shall exist
(A) if Employee is convicted of, pleads guilty to or confesses
to any felony or any act of fraud, misappropriation or
embezzlement, (B) if Employee has engaged in a dishonest act
to the material damage or prejudice of Employer or an
affiliate of Employer, or in conduct or activities materially
damaging to the property, business, or reputation of Employer
or an affiliate of Employer, or (C) if Employee violates any
of the provisions contained in Section 5 of this Agreement,
after receiving written notice from the Employer specifically
outlining the alleged violations by the Employee of Section 5
hereof and either (1) the Employee fails to stop the alleged
behavior which is claimed to be such a breach within thirty
(30) days of receipt by the Employee of such written notice or
(2) the Employer prevails in mediation or binding arbitration
pursuant to the commercial arbitration rules of the American
Arbitration Association which arbitration is commenced by the
Employee within thirty (30) days of receipt by the Employer of
such notice in accordance with the provisions of Section 5.6
hereof;
(iii) The termination by either the Employee or the Employer, upon
thirty (30) days written notice to the other party, in the
event of a Change of Control of the Employer (as defined
hereinbelow).
For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred if (A) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Employer, a corporation owned directly or
indirectly by the stockholders of the Employer (immediately after the IPO) or
any of their respective affiliates, becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Employer representing 50% or more of the total voting power represented by
the Employer's then outstanding securities that vote generally in the election
of directors (referred to herein as "Voting Securities"), including, without
limitation, by reason of the agreement of a third party (including Employee) to
vote the Voting Securities owned by such third party in the same manner as such
person votes the Voting Securities owned by such person; (B) during any period
of two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors and any new directors whose election by the
Board of Directors or nomination for election by the Employer's stockholders was
approved by a vote or a majority of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board of Directors; (C) the stockholders of the
Employer approve a merger or consolidation of the Employer with any other
corporation, other than a merger or consolidation (i) which would result in the
Voting Securities of the Employer outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 50% of the total voting
power represented by the Voting Securities of the Employer or such surviving
entity outstanding immediately after such merger or consolidation or (ii) in
which 50% or more of the board of directors of the surviving entity is composed
of members from the Board of Directors of the Employer; (D) the stockholders of
the Employer approve a plan of complete liquidation of the Employer or an
agreement for the sale or disposition by the Employer of (in one transaction or
a series of transactions) all or substantially all of the Employer's assets; (E)
the executive offices of the Employer are relocated from the Greater Baltimore
Metropolitan Area or (F) the Employee is not a member of the Board of Directors
or is not on any Executive Committee or similar committee of the Board of
Directors; or
134
<PAGE> 3
(iv) After December 31, 2001, this Agreement shall continue upon a
year-to-year basis unless terminated by either the Employer or
the Employee upon ninety days (90) written notice to the other
before January I of the next year.
SECTION 3. COMPENSATION.
3.1 Term of Employment. Employer will provide Employee
with the following salary, expense reimbursement and additional employee
benefits during the term of employment hereunder.
(a) Salary. Employee will be paid a salary of no less
than Two Hundred Seventy Five Thousand Dollars
($275,000) per annum, and subject to increase as
hereinafter provided (the salary then in effect is
referred to as the "Base Salary"), less deductions
and withholdings required by applicable law. The Base
Salary shall be paid to Employee in equal monthly
installments (or on such more frequent basis as other
executives of Employer are compensated). The Base
Salary shall be reviewed by the Board of Directors of
Employer on at least an annual basis thereafter and
may be increased but not decreased below the then
Base Salary as a result of any such review.
(b) Performance Bonuses. In addition to the Base Salary,
the Employee shall have the right to receive from the
Employer, and the Employer shall be obligated to pay
to the Employee, a performance bonus (the
"Performance Bonus") for each fiscal year during the
term of this Agreement, equal to the aggregate amount
determined by the bonus formulas delineated herein
below. Any amount of a Performance Bonus required to
be paid to the Employee for a fiscal year during the
term of this Agreement shall be paid by the Employer
in the first pay period of the Employer immediately
following the finalization of the accounting audit
for financial accounting purposes of the Employer for
the preceding fiscal year but in all events by March
31 of the year immediately following the end of the
fiscal year for which such Performance Bonus is
attributable.
The formulas to determine a Performance Bonus for any
fiscal year during the term of this Agreement shall
be as follows:
(i) For each fiscal year of the Employer, .2% of
the pre-tax net income, before any
performance or other periodic bonuses for
any of the employees of the Employer and any
of its consolidated subsidiaries, of the
Employer on a consolidated basis for
financial accounting basis based upon
applying generally accepted accounting
principles and generally accepted auditing
standards on a consistent basis. This bonus
shall be calculated by the independent
certified public accountant regularly
employed by the Employer (the "CPA")
applying such generally accepted accounting
principles and generally accepted auditing
standards on a consistent basis.
Plus
(ii) For each fiscal year of the Employer, two
percent (2%) of the excess of (a) the
consolidated after tax net income of the
Employer and its consolidated subsidiaries
for a fiscal year, computed by the CPA
applying generally accepted accounting
principles and generally accepted auditing
standards on a consistent basis over (b) the
Wall Street Estimate (as hereinafter
defined) for such fiscal year. For purposes
of this subsection (ii)(b), Wall Street
Estimate for a fiscal year shall mean the
simple arithmetical average of the
consolidated earnings per share estimates
for a fiscal year of the Employer and its
consolidated subsidiaries in the possession
of First Call on the Determination Date (as
hereinafter defined), translated by the CPA
into the equivalent consolidated after tax
net income of the Employer and its
consolidated subsidiaries for such fiscal
135
<PAGE> 4
year. For purposes of this subsection
(ii)(b), the Determination Date shall mean
the first day of the fiscal year for which
such computation applies.
(c) Discretionary Bonus. The Board of Directors may, from
time to time, award the Employee an additional
discretionary bonus based upon such factors as the
Board of Directors deems appropriate. The Employer
shall have no entitlement to such a discretionary
bonus until and unless so awarded by the Board of
Directors.
(d) Vacation. Employee shall receive four (4) weeks
vacation time per calendar year during the ten-n of
this Agreement in addition to customary holidays
afforded other employees of Employer. Any unused
vacation days in any calendar year may not be carried
over to subsequent years. The Employer recognizes the
benefit to it of the Employee attending and
participating in trade seminars, conventions, and
similar gatherings and educational seminars and
encourages the Employee to attend such seminars and
conventions. Accordingly, any reasonable cost and
expenses thereof will be paid for by the Employer and
any time spent by the Employee at such seminars and
conventions shall not constitute vacation time but
shall constitute part of the Employee's duties under
this Agreement.
(e) Expenses. Employer shall reimburse Employee, within
thirty (30) days of its receipt of a reimbursement
report from the Employee, for all reasonable and
necessary expenses incurred by Employee on behalf of
Employer.
(f) Benefit Plans. Employee shall have the option of
participating in such medical, dental, disability,
hospitalization, life insurance, stock option and
other benefit plans (such as pension and profit
sharing plans) as Employer maintains from time to
time for the benefit of other senior executives of
Employer, on the terms and subject to the conditions
set forth in such plans.
3.2 Effect of Termination or Change in Control. Except as
hereinafter provided, upon the termination of the employment of Employee
hereunder for any reason, Employee shall be entitled to all compensation and
benefits earned or accrued under Section 3.1 as of the effective date of
termination (the "Termination Date"), but from and after the Termination Date no
additional compensation or benefits shall be earned by Employee hereunder.
Except upon termination by the Employer of the employment of the Employee
pursuant to the provisions of Section 2(ii) hereof, Employee shall be deemed to
have earned any Performance Bonus payable with respect to the fiscal year in
which the Termination Date occurs on a prorated basis (based on the number of
days in such calendar year through and including the Termination Date divided by
365). Any such Performance Bonus shall be payable on the date on which the
Performance Bonus would have been paid had Employee continued his employment
hereunder. In addition, the Employee and his eligible dependents shall be
entitled to receive at the sole cost of the Employer (A) the health insurance
benefits specified hereunder for a period of twelve (12) months following the
Termination Date (the "Continuation Period" and following such time period, the
Employee shall be entitled to all rights afforded to him under the Federal
Omnibus Reconciliation Act ("COBRA") to Purchase continuation coverage of such
health insurance benefits for himself and his dependents for the maximum period
permitted by law, and the Employee shall be deemed to have elected to exercise
his rights under Cobra as of the first day of the Continuation Period, and (B)
the life insurance benefits specified hereinabove for the period of the
Continuation Period.
(i) Immediately upon a Change in Control or upon
termination of this Agreement, pursuant to the provisions of Sections 2 (i) or
(iii) hereof, any stock grants or options previously awarded to the Employee,
either by this Agreement or otherwise, shall fully and completely vest and the
Employee shall be able to retain or obtain as the case may be, such stock, as
though there was no vesting period or criteria of any kind or nature, with
respect to such stock. If stock options have previously been awarded to the
Employee, notwithstanding any terms and conditions of such award or any plan
pursuant to which such stock options were awarded, the Employee or his
authorized representative shall have a period of three (3) months from the
Termination Date to exercise any or all of such stock options and acquire for
his own benefit the shares of stock covered by such stock options.
136
<PAGE> 5
(ii) Upon termination of the Agreement pursuant to the
terms of Section 2(ii) or (iv) hereof, all granted but unvested, at the
Termination Date, stock grants or options shall be forfeited upon such
termination; provided that the Employee shall be able to retain or exercise any
rights for a period of one (1) month after the Termination Date, notwithstanding
the terms and provisions of such stock options awarded or the plan under which
they were awarded, with respect to any shares of stock granted or shares of
stock covered by stock options that have fully vested as of the Termination
Date.
3.3 Loan Forgiveness on Change in Control. Immediately
upon a Change of Control, any balance of the "Loan", as defined in Section 4.2
hereof, together with any accrued but unpaid interest thereon to the date of
forgiveness, shall be forgiven automatically without further action by the
Employer or the Employee, and in addition, Employer shall pay to Employee an
amount equal to the difference between (i) the actual federal, state and local
income taxes payable by Employee for the year in which the Loan is forgiven,
including for the purpose of such calculation the taxes resulting from the
inclusion in Employee's income of the gross up payments under this Section and
(ii) the amount of such taxes which would have been paid by Employee had the
Loan not been forgiven. In the event it is determined that any payment hereunder
is an "excess parachute payment" as defined in Section 280G of the Internal
Revenue Code of 1986, as amended, the Employer shall reimburse Employee for the
excise tax imposed under such section and in addition shall pay Employee an
amount equal to the additional federal, state and local income taxes payable or
paid by Employee for the year in which such payment is made to Employee,
including for the purpose of such calculation, the taxes resulting from the
inclusion in Employee's income of the gross up payments made under this Section.
The amounts payable to Employee hereunder shall be paid by Employer within five
business days after Employee submits a calculation of the amount due to him
under this Section, which statement may be an estimated statement based upon the
information available to Employee at the time the statement is submitted. If
payment is made by Employer based on such estimated payment, Employee shall
submit to Employer a final statement based upon the Employee's tax return as
filed for the year in question, which final statement shall be submitted not
later than 30 days after the date on which Employee files his federal income tax
return for such year. Such final statement shall contain a reconciliation of to
the estimated statement and payment of the amounts due to or from Employee shall
be paid within 3 days after the final statement has been submitted.
SECTION 4. COMMON STOCK.
4.1. Terms of Employment. So that Employee can share in
the increase in value of the business of Employer over time, Employee will be
granted common stock of Employer as follows:
(i) Stock Grant. Under the Prior Agreement, and upon the
consummation of the public offering of Employer's
common stock ("IPO"), Employee has been granted that
number of shares of all classes of stock of the
Employer equal to one percent (1.0%) of the number of
shares of all classes of stock of the Employer
outstanding immediately upon consummation of the IPO.
Such shares so granted fully and completely vested on
the date of issuance.
(ii) Stock Splits and Recapitalization. The number of
shares of common stock granted hereby shall be
automatically adjusted to reflect any change in the
capitalization of the Employer, including, but not
limited to, such changes as stock dividends, stock
splits or recapitalizations. If any adjustment under
this Section would create the right of Employee to
acquire a fractional share of stock, such fractional
share shall be disregarded and the number of shares
of common stock subject to the grant shall be the
next higher number of whole shares of common stock,
rounding all fractions upward.
4.2 Stock Loan.
(i) In order to help the Employee pay any required income
taxes with respect to the stock granted to the
Employee pursuant to the provisions of Section 4.1
hereof Employer has provided to the Employee a loan
(the "Loan"). The Loan provides for payment of
interest only until June 30, 2005, requires yearly
payments of simple interest at the same interest
137
<PAGE> 6
rate as the Employer incurs to borrow funds from its
institutional lenders, is collateralized only by the
stock granted and the Employee otherwise is not
personally obligated to repay the Loan; provided that
upon the termination of this Agreement pursuant to
the provisions of Section 2(i) or (ii), the Loan
shall be fully paid off within three (3) months of
the Termination Date; upon the termination of this
Agreement pursuant to Section (iv), hereof, the Loan
shall be fully paid off within one (1) year after the
Termination Date and upon a Change of Control, the
Loan shall be forgiven as hereinabove provided.
(ii) To the extent that the Employee has not repaid the
entire principal balance of the Loan plus any accrued
interest thereon before June 30, 2005, the Employee
agrees to sell, as promptly as practicable, a
sufficient number of shares of Common Stock to enable
the Employee to repay the then remaining outstanding
balance (unpaid principal balance and unpaid accrued
interest from time to time, the ("Unpaid Balance of
the Loan")) of the Loan after any taxes have been
provided for (the "Required Number of Shares"),
subject to the following conditions and requirements:
(A) Such sales shall be made in a manner which
shall reasonably not disrupt the orderly
trading of Common Stock, either through open
market or privately negotiated transactions
as long as no sales shall be made at a price
lower that 1/16 below the last sales price
of Common Stock publicly traded immediately
prior to such sale even if such prohibition
shall cause a delay in Employee's compliance
with his obligation to sell Common Stock as
provided hereinabove;
(B) If after June 30, 2005 the Employer proposes
to register any of its securities under the
Securities Act for sale to the public for
its own account or for the account of other
security holders or both, the Employer may,
upon 30 days prior written notice to the
Employee, require the Employee to include
the Required Number of Shares in such
offering and to sell such shares as part of
such offering. In such event, all of the
costs of registering the Required Number of
Shares, including but not limited to, all
registration and filing fees, printing
expenses, fees and disbursements of counsel
and independent public accountants for the
Employer; fees of the National Association
of Securities Dealers, Inc., state Blue Sky
fees and expenses, transfer taxes, fees of
transfer agents and registrars and costs of
insurance; and all underwriting discounts
and selling commissions applicable to the
sale of shares other than the Required
Number of Shares, shall be paid by the
Employer. Notwithstanding the above, the
Employee shall pay all underwriting
discounts and selling commissions directly
payable with respect to the registration of
the Required Number of Shares; or
(C) If, as of December 31, 2005, Employee has
not yet disposed of the Required Number of
Shares, the Employer will repurchase from
the Employee the Required Number of Shares
at a per share price equal to 1/16 lower
than the average of the closing sales price
for the Common Stock as reported on the
national stock exchange on which the
Employer's stock trades for a ten (10) day
period prior to the date of such sale to the
Employer, provided, however, that such
repurchase shall only be required if it can
be effected in a manner that complies with
all applicable securities laws.
Notwithstanding anything contained herein to the contrary, the
Employee shall not be required to sell any of the Required Number of Shares
unless the net proceeds paid to the Employee as a result of such shares equals
or exceeds 150% of the IPO Price per share.
Nothing in this Section 4.2(ii) shall be construed to require
the Employee to sell common stock except in compliance with all applicable
securities laws. Any delay imposed due to compliance with requirements of
138
<PAGE> 7
applicable securities laws shall suspend the Employee's obligation to sell
Common Stock as otherwise provided hereinabove.
Lastly, notwithstanding anything to the contrary contained in
this Section 4.2(ii), the Employee shall have the right but not the obligation,
at any time and from time to time, to repay the Unpaid Balance of the Loan from
his personal resources.
4.3 Securities Act. THE SHARES OF COMMON STOCK (THE
"SHARES") GRANTED PURSUANT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS, THE SHARES ARE OFFERED PURSUANT TO EXEMPTIONS PROVIDED BY
SECTION 4(2) OF THE ACT AND CERTAIN RULES AND REGULATIONS PROMULGATED PURSUANT
THERETO. THE SHARES MAY NOT BE TRANSFERRED BY THE EMPLOYEE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO EMPLOYER AND ITS COUNSEL,
WHICH ACCEPTANCE SHALL NOT BE UNREASONABLY WITHHELD, THAT SUCH REGISTRATION IS
NOT REQUIRED.
At such time as counsel for the Employee, which is acceptable
to the Employer, which acceptance shall not be unreasonably withheld, opines
that the aforementioned stock restriction and legend can be removed from the
certificates representing stock granted pursuant to Section 4.1 (i) hereof in
accordance with applicable securities law, the Employer agrees to delete any
such legend from the certificates representing such shares that have been so
granted.
SECTION 5. PARTIAL RESTRAINT ON COMPETITION.
5.1 Definitions. For the purposes of this Section 5, the
following definitions shall apply.
(a) "Company Activities" means the business of
construction and maintenance of railway beds
and tracks; construction and maintenance of
elevated rail systems and structures;
construction and maintenance of railway
switching and signaling equipment,
distributorships and supply in the field of
rail and railway construction materials;
distributorships and supply in the field of
electromechanical controls for use in the
railroad industry, namely, railway switching
equipment and railway signaling equipment;
and design for others in the field of
railroad industry, namely, engineering
design of rail and railway related
structures and equipment or any other
business of the Employer and its
consolidated (for financial accounting
purposes) subsidiaries (the "Consolidated
Group") which said entities are engaged in
on the Termination Date as long as such
business generated gross sales of at least
10% or more of the total gross sales of the
Consolidated Group for the most recent
fiscal year of the Employer before or on the
Termination Date.
(b) "Competitor" means any business, individual,
partnership, joint venture, association,
firm, corporation or other entity, other
than the Employer or its affiliates or
subsidiaries, engaged, wholly or partly, in
Company Activities.
(c) "Competitive Position" means (i) having any
financial interest in a Competitor,
including but not limited to, the direct or
indirect ownership or control of all or any
portion of a Competitor, or acting as a
partner, officer, director, principal, agent
or trustee of any Competitor or (ii)
engaging in any employment or independent
contractor arrangement, business or other
activity with any Competitor whereby
Employee will serve such Competitor in any
senior managerial capacity.
139
<PAGE> 8
(d) "Confidential Information" means any
confidential, proprietary business
information or data belonging to or
pertaining to Employer that does not
constitute a "Trade Secret" (as hereinafter
defined) and that is not generally known by
or available through legal means to the
public, including, but not limited to,
information regarding Employer's customers
or actively sought prospective customers,
acquisition targets, suppliers,
manufacturers and distributors gained by
Employee as a result of his employment with
Employer. Information shall be excluded from
this definition if (i) it, at the time of
disclosure, is generally known to the trade
or public, (ii) it becomes at a later date
generally known to the trade or public
through no fault of the Employee, (iii) it
is known or possessed by the Employee prior
to the effectiveness of this Agreement, (iv)
it is disclosed to the Employee in good
faith by a third party who has a right to
such information, (v) it is disclosed in
compliance with a subpoena or court order or
(vi) it is possessed by the recipient of the
information prior to receipt of same from
the Employee.
(e) "Customer" means actual customers or
actively sought prospective customers of
Employer during the Term.
(f) "Noncompete Period" or "Nonsolicitation
Period" means the period beginning the date
hereof and ending on the first anniversary
of the termination of Employee's employment
with Employer; provided that such Noncompete
Period or Nonsolicitation Period shall end
on the Termination Date in the event this
Agreement is terminated pursuant to the
provisions of Section 2(iii), hereof and,
provided further, that the Noncompete Period
or Nonsolicitation Period may be shortened
at the discretion of the Board of Directors
of Employer.
(g) "Territory" means the area within a one
hundred (100) mile radius of any corporate
office or job site of Employer or any of its
subsidiaries, affiliates or divisions.
(h) "Trade Secrets" means information or data of
or about Employer, including but not limited
to technical or non-technical data,
formulas, patterns, compilations, programs,
devices, methods, techniques, drawings,
processes, financial data, financial plans,
products plans, or lists of actual or
potential customers, clients, distributees
or licensees, information concerning
Employer's finances, services, staff,
contemplated acquisitions, marketing
investigations and surveys, that are not
generally known to, and/or are not readily
ascertainable by legal means by, other
persons. Information and/or data shall be
excluded from this definition if (i) it, at
the time of disclosure, is generally known
to the trade or public or (ii) it becomes at
a later date generally known to the trade or
public through no fault of the Employee.
(i) "Work Product" means any and all work
product property, data documentation or
information of any kind prepared, conceived,
discovered, developed or created by Employee
for Employer or its affiliates, or any of
Employer's or its affiliates' clients or
customers for utilization in Company
Activities, not generally known by and/or
not readily ascertainable by proper means by
other persons who can obtain economic value
from their disclosure or use.
5.2 Trade Name and Confidential Information.
(a) Employee hereby agrees that (i) with regard
to each item constituting all or any portion
of the Trade Secrets and Confidential
Information, at all times during the
140
<PAGE> 9
Term and all times during which such item
continues to constitute a Trade Secret or
Confidential Information, respectively:
(i) Employee shall not, directly or by assisting
others own, manage, operate, join, control
or participate in the ownership, management,
operation or control of, or be connected in
any manner with, any business conducted
under any corporate or trade name of
Employer or name confusingly similar
thereto, without the prior written consent
of Employer;
(ii) Employee shall hold in confidence all Trade
Secrets and all Confidential Information and
will not, either directly or indirectly,
use, sell, lend, lease, distribute, license,
give, transfer, assign, show, disclose,
disseminate, reproduce, copy, appropriate or
otherwise communicate any Trade Secrets or
Confidential Information, without the prior
written consent of Employer; and
(iii) Employee shall immediately notify Employer
of any unauthorized disclosure or use of any
Trade Secrets or Confidential Information of
which Employee becomes aware. Employee shall
assist Employer, to the extent necessary, in
the procurement or any protection of
Employer's rights to or in any of the Trade
Secrets or Confidential Information.
(b) Upon the request of Employer and, in any event, upon
the termination of Employee's employment with
Employer, Employee shall deliver to Employer all
memoranda, notes, records, manuals and other
documents, including all copies of such materials and
all documentation prepared or produced in connection
therewith, pertaining to the performance of
Employee's services hereunder or Employer's business
or containing Trade Secrets or Confidential
Information, whether made or complied by Employee or
furnished to Employee from another source by virtue
of Employee's employment with Employer.
(c) To the greatest extent possible, all Work Product
shall be deemed to be "work made for hire" (as
defined in the Copyright Act, 17 U.S.C.A. "101 et
seq., as amended) and owned exclusively by
Employer. Employee hereby unconditionally and
irrevocably transfers and assigns to Employer all
rights, title and interest Employee may have in or to
any and all Work Product, including, without
limitation, all patents, copyrights, trademarks,
service marks and other intellectual property rights.
Employee agrees to execute and deliver to Employer
any transfers, assignments, documents or other
instruments which Employer may deem necessary or
appropriate to vest complete title and ownership of
any and all such Work Product, and all rights
therein, exclusively in Employer.
5.3 Noncompetition.
(a) The parties hereto acknowledge that Employee
is conducting Company Activities throughout
the Territory. Employee acknowledges that to
protect adequately the interest of Employer
in the business of Employer it is essential
that any noncompete covenant with respect
thereto cover all Company Activities and the
entire Territory.
(b) Employee hereby agrees that, during the Term
and the Noncompete Period, Employee will
not, in the Territory, either directly or
indirectly, alone or in conjunction with any
other party, accept, enter into or take any
action in conjunction with or in
furtherance of a Competitive Position with
Employer. Employee shall notify Employer
promptly in writing if Employee receives an
offer of a Competitive Position during the
Noncompete Term, and such notice shall
describe all material terms of such offer.
141
<PAGE> 10
Nothing contained in this Section 5 shall prohibit Employee
from acquiring not more than five percent (5%) of any Competitor, or from
acquiring any percentage of any company which is non-competitive with Employer,
whose common stock is publicly traded on a national securities exchange or in
the over-the-counter market.
5.4 Nonsolicitation During Employment Term. Employee
hereby agrees that Employee will not, during the
Term, either directly or indirectly, alone or in
conjunction with any other party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the Customer
with services or products competitive with
those offered by Employer during the Term,
or
(b) solicit or attempt to solicit any officer,
director, employee, consultant, contractor,
agent, lessor, lessee, licensor, licensee,
supplier or any shareholder of any of the
Founding Companies or other personnel of
Employer or any of its affiliates or
subsidiaries to terminate, alter or lessen
that party's affiliation with Employer or
such affiliate or subsidiary or to violate
the terms of any agreement or understanding
between such employee, consultant,
contractor or other person and Employer.
5.5 Nonsolicitation During Nonsolicitation Period.
Employee hereby agrees that Employee will not, during the Nonsolicitation
Period, either directly or indirectly, alone or in conjunction with any other
party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the Customer
with services or products that qualify as
Company Activities during the Term;
provided, however, that the covenant in this
clause shall limit Employee's conduct only
with respect to those Customers with whom
Employee had substantial contact (through
direct or supervisory interaction with the
Customer or the Customer's account) during a
period of time up to but no greater than two
(2) years prior to the last day of the Term;
or
(b) solicit or attempt to solicit any officer,
director, employee, consultant, contractor,
agent, lessor, lessee, licensor, licensee,
supplier or any shareholder of any of the
Founding Companies or other personnel of
Employer or any of its affiliates or
subsidiaries residing at the time of the
solicitation in the Territory to terminate,
alter or lessen that party's affiliation
with Employer or such affiliate or
subsidiary or to violate the terms of any
agreement or understanding between such
employee, consultant, contractor or other
person and Employer. For purposes of this
clause (b), employees, consultants,
contractors, or other personnel are those
with knowledge of or access to Trade Secrets
and Confidential Information of the
Employer.
5.6 Binding Arbitration. The parties shall refer any
dispute as to whether or not the Employee has
violated the provisions of this Section 5 to a
mediator and, in the event that mediation is
unsuccessful, such dispute shall be resolved by
binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association. The arbitrator shall be selected by the
mediator. The cost of the mediator and, if necessary,
the arbitrator and all other costs of the mediation
and, if necessary, the arbitration shall be split
equally between the Employee and the Employer, except
for attorneys fees which shall be paid by the party
employing such attorney.
SECTION 6. MISCELLANEOUS.
142
<PAGE> 11
6.1 Severability. The covenants in this Agreement shall
be construed as covenants independent of one another and as obligations distinct
from any other contract between Employee and Employer.
6.2 Survival of Obligations. The covenants in Section 5
of this Agreement shall survive termination of Employee's employment, except in
the case of termination of this Agreement pursuant to the provisions of Section
2(iii) hereof, in which case they shall terminate also and have no further force
or legal effect as of the Termination Date.
6.3 Notices. Any notice or other document to be given
hereunder by any party hereto to any other party hereto shall be in writing and
delivered in person or by courier, by telecopy transmission or sent by any
express mail service, postage or fees prepaid at the following addresses:
EMPLOYER
RailWorks Corporation
1104 Kenilworth Drive
Suite 301
Baltimore, MD 21204
Attention: RailWorks Chief Executive Officer
Telecopy No.: (410) 825-6920
EMPLOYEE
Mr. Michael R. Azarela
12310 Cleghorn Road
Cockeysville, MD 21030
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
6.4 Binding Effect. This Agreement ensures to the benefit
of, and is binding upon, Employer and their respective successors and assigns,
and Employee, together with Employee's executor, administrator, personal
representative, heirs, and legatees.
6.5 Entire Agreement. This Agreement is intended by the
parties hereto to be the final expression of their agreement with respect to the
subject matter hereof and is the complete and exclusive statement of the terms
thereof, notwithstanding any representations, statements or agreements to the
contrary heretofore made. This Agreement supersedes and terminates all prior
employment and compensation agreements, arrangements and understandings between
or among Employer and Employee including, without limitation, the Prior
Agreement. This Agreement may be modified only by a written instrument signed by
all of the parties hereto.
6.6 Governing Law. This Agreement shall be deemed to be
made in, and in all respects shall be interpreted, construed, and governed by
and in accordance with, the laws of the State of Maryland. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court of other governmental or judicial authority or by any
board of arbitrators by reasons of such party or its counsel having or being
deemed to have structured or drafted such provision.
6.7 Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
6.8 Specific Performance. Each party hereby agrees that
any remedy at law for any breach of provisions contained in this Agreement shall
be inadequate and that the other parties hereto shall be entitled to specific
performance and any other appropriate injunctive relief in addition to any other
remedy such party might have under this Agreement or at law or in equity.
143
<PAGE> 12
6.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
6.10 Other Employment Agreements. Without the prior
written consent of Employee, no person that is subsequently hired by RailWorks
in a position comparable to the position held by Employee shall be offered an
employment agreement that contain benefits that are more favorable to such
person than the terms contained herein.
SIGNATURES APPEAR ON NEXT PAGE.
144
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
RAILWORKS CORPORATION
By: (SEAL)
--------------------------------------
John G. Larkin
Chief Executive Officer
EMPLOYEE
(SEAL)
-----------------------------------------
Michael R. Azarela
145
<PAGE> 1
EXHIBIT 10.46
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of
the 1st day of January, 2000, by and between John G. Larkin, an individual
resident of the State of Maryland ("Employee"), and Railworks Corporation, a
Delaware corporation ( "Employer").
W I T N E S S E T H
WHEREAS, Employee has been employed by Employer pursuant to an
Amended and Restated Employment Agreement dated as of August 4, 1998 ("Prior
Agreement");
WHEREAS, Employer and Employee desire to amend the Prior
Agreement and restate it as so amended; and
WHEREAS, the Employee desires to be so employed by the
Employer, on the terms and conditions as contained herein.
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. EMPLOYMENT.
Subject to the terms hereof, Employer will employ Employee and
Employee hereby accepts such employment. The Employee shall serve as the Chief
Executive Officer of the Employer and shall be a director of each of the
subsidiaries of the Employer and shall also serve on any executive committee
which oversees the daily operations of the Employer, or any similar committee
having such function.
Subject to the terms and conditions of this Agreement,
Employee agrees to devote substantially all of his business time and best
efforts to the performance of his job as Chief Executive Officer of the
Employer, subject to direction by the Board of Directors of the Employer (the
"Board of Directors"), as long as such directions are consistent with the
duties, responsibilities and authority customarily given or required of chief
executive officers generally, with the Employee to report his activities
regularly to the Board of Directors. Notwithstanding anything to the contrary
contained herein, as of the date of this Agreement, the Employee shall be
permitted to invest in entities that sell, and sell himself, financial services
and products generally; provided that such activities do not interfere with the
performance of his duties under this Agreement and such activities are not in
contravention of the terms and conditions of Section 5 hereof.
SECTION 2. TERM OF EMPLOYMENT.
The term of the Employee's employment hereunder (the "Term")
shall be from May 21, 1998, the commencement date of the Prior Agreement, until
the occurrence of any of the following events:
(i) The death or total disability of Employee (total
disability meaning the failure to fully perform his
normal required services hereunder for a period of
six (6) consecutive months during any consecutive
twelve (12) month period during the term hereof, as
determined by an independent medical doctor jointly
chosen by the Employee and the Employer) by reason of
mental or physical disability;
(ii) The termination by Employer of Employee's employment
hereunder, upon thirty (30) days prior written notice
to Employee, for "good cause", as reasonably
determined by the Board of Directors. For purposes of
this Agreement, "good cause" for termination of
Employee's employment shall exist (A) if Employee is
convicted of, pleads guilty to or confesses to any
felony or any act of fraud, misappropriation or
embezzlement, (B) if Employee has engaged in a
dishonest act to the material damage or prejudice of
Employer or an affiliate of Employer, or in conduct
or activities materially damaging to the property,
business, or reputation of Employer or an affiliate
of Employer, or (C) if Employee violates any of the
146
<PAGE> 2
provisions contained in Section 5 of this Agreement,
after receiving written notice from the Employer
specifically outlining the alleged violations by the
Employee of Section 5 hereof and either (1) the
Employee fails to stop the alleged behavior which is
claimed to be such a breach within thirty (30) days
of receipt by the Employee of such written notice or
(2) the Employer prevails in mediation or binding
arbitration pursuant to the commercial arbitration
rules of the American Arbitration Association which
arbitration is commenced by the Employee within
thirty (30) days of receipt by the Employer of such
notice in accordance with the provisions of Section
5.6 hereof;
(iii) The termination by either the Employee or the
Employer, upon thirty (30) days written notice to the
other party, in the event of a Change of Control of
the Employer (as defined hereinbelow).
For purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred if (A) any "person" (as such
term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than a trustee or other
fiduciary holding securities under an employee
benefit plan of the Employer, a corporation owned
directly or indirectly by the stockholders of the
Employer (immediately after the IPO) or any of their
respective affiliates, becomes the "beneficial owner"
(a defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Employer
representing 50% or more of the total voting power
represented by the Employer's then outstanding
securities that vote generally in the election of
directors (referred to herein as "Voting
Securities"), including, without limitation, by
reason of the agreement of a third party (including
Employee) to vote the Voting Securities owned by such
third party in the same manner as such person votes
the Voting Securities owned by such person; (B)
during any period of two consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors and any new
directors whose election by the Board of Directors or
nomination for election by the Employer's
stockholders was approved by a vote or a majority of
the directors then still in office who either were
directors at the beginning of the period or whose
election or nomination for election was previously so
approved, cease for any reason to constitute a
majority of the Board of Directors; (C) the
stockholders of the Employer approve a merger or
consolidation of the Employer with any other
corporation, other than a merger or consolidation (i)
which would result in the Voting Securities of the
Employer outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into Voting
Securities of the surviving of the surviving entity)
at least 50% of the total voting power represented by
the Voting Securities of the Employer or such
surviving entity outstanding immediately after such
merger or consolidation or (ii) in which 50% or more
of the board of directors of the surviving entity is
composed of members from the Board of Directors of
the Employer; (D) the stockholders of the Employer
approve a plan of complete liquidation of the
Employer or an agreement for the sale or disposition
by the Employer of (in one transaction or a series of
transactions) all or substantially all of the
Employer's assets; (E) the executive offices of the
Employer are relocated from the Greater Baltimore
Metropolitan Area or (F) the Employee is not a member
of the Board of Directors or is not on any Executive
Committee or similar committee of the Board of
Directors; or
(iv) After December 31, 2001, this Agreement shall
continue upon a year-to-year basis unless terminated
by either the Employer or the Employee upon ninety
days (90) written notice to the other before January
1 of the next year.
SECTION 3. COMPENSATION.
3.1 Term of Employment. Employer will provide Employee
with the following salary, expense reimbursement and additional employee
benefits during the term of employment hereunder.
(a) Salary. Employee will be paid a salary of no less
than Three Hundred Twenty-Five Thousand Dollars
($325,000) per annum, and subject to increase as
hereinafter provided (the salary then in effect is
referred
147
<PAGE> 3
to as the "Base Salary"), less deductions and
withholdings required by applicable law. The Base
Salary shall be paid to Employee in equal monthly
installments (or on such more frequent basis as other
executives of Employer are compensated). The Base
Salary shall be reviewed by the Board of Directors of
Employer on at least an annual basis thereafter and
may be increased but not decreased below the then
Base Salary as a result of any such review.
(b) Performance Bonuses. In addition to the Base Salary,
the Employee shall have the right to receive from the
Employer, and the Employer shall be obligated to pay
to the Employee, a performance bonus (the
"Performance Bonus") for each fiscal year during the
term of this Agreement, equal to the aggregate amount
determined by the bonus formulas delineated herein
below. Any amount of a Performance Bonus required to
be paid to the Employee for a fiscal year during the
term of this Agreement shall be paid by the Employer
in the first pay period of the Employer immediately
following the finalization of the accounting audit
for financial accounting purposes of the Employer for
the preceding fiscal year but in all events by March
31 of the year immediately following the end of the
fiscal year for which such Performance Bonus is
attributable.
The formulas to determine a Performance Bonus for any
fiscal year during the term of this Agreement shall
be as follows:
(i) For each fiscal year of the Employer, .5% of
the pre-tax net income, before any
performance or other periodic bonuses for
any of the employees of the Employer and any
of its consolidated subsidiaries, of the
Employer on a consolidated basis for
financial accounting basis based upon
applying generally accepted accounting
principles and generally accepted auditing
standards on a consistent basis. This bonus
shall be calculated by the independent
certified public accountant regularly
employed by the Employer (the "CPA")
applying such generally accepted accounting
principles and generally accepted auditing
standards on a consistent basis.
Plus
(ii) For each fiscal year of the Employer, five
percent (5%) of the excess of (a) the
consolidated after tax net income of the
Employer and its consolidated subsidiaries
for a fiscal year, computed by the CPA
applying generally accepted accounting
principles and generally accepted auditing
standards on a consistent basis over (b) the
Wall Street Estimate (as hereinafter
defined) for such fiscal year. For purposes
of this subsection (ii)(b), Wall Street
Estimate for a fiscal year shall mean the
simple arithmetical average of the
consolidated earnings per share estimates
for a fiscal year of the Employer and its
consolidated subsidiaries in the possession
of First Call on the Determination Date (as
hereinafter defined), translated by the CPA
into the equivalent consolidated after tax
net income of the Employer and its
consolidated subsidiaries for such fiscal
year. For purposes of this subsection
(ii)(b), the Determination Date shall mean
the first day of the fiscal year for which
such computation applies.
(c) Discretionary Bonus. The Board of Directors may, from
time to time, award the Employee an additional
discretionary bonus based upon such factors as the
Board of Directors deems appropriate. The Employer
shall have no entitlement to such a discretionary
bonus until and unless so awarded by the Board of
Directors.
(d) Vacation. Employee shall receive four (4) weeks
vacation time per calendar year during the term of
this Agreement in addition to customary holidays
afforded other employees of Employer. Any unused
vacation days in any calendar year may not be carried
over to subsequent years. The Employer recognizes the
benefit to it of the Employee attending and
participating in trade seminars, conventions, and
similar gatherings and educational seminars and
encourages the Employee to attend such seminars and
conventions. Accordingly, any reasonable cost and
expenses thereof will be paid for by the Employer and
any time spent by the Employee at such seminars and
conventions shall not constitute vacation time but
shall constitute part of the Employee's duties under
this Agreement.
148
<PAGE> 4
(e) Expenses. Employer shall reimburse Employee, within
thirty (30) days of its receipt of a reimbursement
report from the Employee, for all reasonable and
necessary expenses incurred by Employee on behalf of
Employer.
(f) Benefit Plans. Employee shall have the option of
participating in such medical, dental, disability,
hospitalization, life insurance, stock option and
other benefit plans (such as pension and profit
sharing plans) as Employer maintains from time to
time for the benefit of other senior executives of
Employer, on the terms and subject to the conditions
set forth in such plans.
3.2 Effect of Termination and Change in Control. Except
as hereinafter provided, upon the termination of the employment of Employee
hereunder for any reason, Employee shall be entitled to all compensation and
benefits earned or accrued under Section 3.1 as of the effective date of
termination (the "Termination Date"), but from and after the Termination Date no
additional compensation or benefits shall be earned by Employee hereunder.
Except upon termination by the Employer of the employment of the Employee
pursuant to the provisions of Section 2(ii) hereof, Employee shall be deemed to
have earned any Performance Bonus payable with respect to the fiscal year in
which the Termination Date occurs on a prorated basis (based on the number of
days in such calendar year through and including the Termination Date divided by
365). Any such Performance Bonus shall be payable on the date on which the
Performance Bonus would have been paid had Employee continued his employment
hereunder. In addition, the Employee and his eligible dependents shall be
entitled to receive at the sole cost of the Employer (A) the health insurance
benefits specified hereunder for a period of twelve (12) months following the
Termination Date (the "Continuation Period") and following such time period, the
Employee shall be entitled to all rights afforded to him under the Federal
Omnibus Reconciliation Act ("COBRA") to purchase continuation coverage of such
health insurance benefits for himself and his dependents for the maximum period
permitted by law, and the Employee shall be deemed to have elected to exercise
his rights under Cobra as of the first day of the Continuation Period, and (B)
the life insurance benefits specified hereinabove for the period of the
Continuation Period.
(i) Immediately upon a Change in Control or upon
termination of this Agreement pursuant to the
provisions of Sections 2(i) or (iii) hereof, any
stock grants or options previously awarded to the
Employee, either by this Agreement or otherwise,
shall fully and completely vest and the Employee
shall be able to retain or obtain as the case may be,
such stock, as though there was no vesting period or
criteria of any kind or nature, with respect to such
stock. If stock options have previously been awarded
to the Employee, notwithstanding any terms and
conditions of such award or any plan pursuant to
which such stock options were awarded, the Employee
or his authorized representative shall have a period
of three (3) months from the Termination Date to
exercise any or all of such stock options and acquire
for his own benefit the shares of stock covered by
such stock options.
(ii) Upon termination of the Agreement pursuant to the
terms of Section 2(ii) or (iv) hereof, all granted
but unvested, at the Termination Date, stock grants
or options shall be forfeited upon such termination;
provided that the Employee shall be able to retain or
exercise any rights for a period of one (1) month
after the Termination Date, notwithstanding the terms
and provisions of such stock options awarded or the
plan under which they were awarded, with respect to
any shares of stock granted or shares of stock
covered by stock options that have fully vested as of
the Termination Date.
3.3 Loan Forgiveness on Change in Control. Immediately upon a
Change of Control, any balance of the "Loan", as defined in Section 4.2 hereof,
together with any accrued but unpaid interest thereon to the date of
forgiveness, shall be forgiven automatically without further action by the
Employer or the Employee, and in addition, Employer shall pay to Employee an
amount equal to the difference between (i) the actual federal, state and local
income taxes payable by Employee for the year in which the Loan is forgiven,
including for the purpose of such calculation the taxes resulting from the
inclusion in Employee's income of the gross up payments under this Section and
(ii) the amount of such taxes which would have been paid by Employee had the
Loan not been forgiven. In the event it is determined that any payment hereunder
is an "excess parachute payment" as defined in Section 280G of the Internal
Revenue Code of 1986, as amended, the Employer shall reimburse Employee for the
excise tax imposed under such section and in addition shall pay Employee an
amount equal to the additional federal, state and local income taxes payable or
paid by Employee for the year in which such payment is made to Employee,
including for the purpose of such calculation, the taxes resulting from the
inclusion in Employee's income of the gross up payments made under this Section.
The amounts payable to Employee hereunder shall be paid by Employer within five
business days after Employee submits a calculation of the amount due to him
under this Section, which statement may be an estimated statement based upon the
information available to Employee at the time the statement is submitted. If
payment is made by Employer based on such estimated payment, Employee shall
submit to Employer a
149
<PAGE> 5
final statement based upon the Employee's tax return as filed for the year in
question, which final statement shall be submitted not later than 30 days after
the date on which Employee files his federal income tax return for such year.
Such final statement shall contain a reconciliation of to the estimated
statement and payment of the amounts due to or from Employee shall be paid
within 3 days after the final statement has been submitted.
SECTION 4. COMMON STOCK.
4.1 Term of Employment. So that Employee can share in the
increase in value of the business of Employer over time, Employee will be
granted common stock of Employer as follows:
(i) Stock Grants. Under the Prior Agreement, and upon the
consummation of the public offering of Employer's
common stock ("IPO"), Employee has been granted that
number of shares of all classes of stock of the
Employer equal to four and one-half (4 1/2%) of the
number of shares of all classes of stock of the
Employer outstanding immediately upon consummation of
the IPO. Such shares so granted fully and completely
vested on the date of issuance.
(ii) Stock Splits and Recapitalization. The number of
shares of common stock granted hereby shall be
automatically adjusted to reflect any change in the
capitalization of the Employer, including, but not
limited to, such changes as stock dividends, stock
splits or recapitalizations. If any adjustment under
this Section would create the right of Employee to
acquire a fractional share of stock, such fractional
share shall be disregarded and the number of shares
of common stock subject to the grant shall be the
next higher number of whole shares of common stock,
rounding all fractions upward.
4.2 Stock Loan.
(i) In order to help the Employee pay any required income
taxes with respect to the stock granted to the
Employee pursuant to the provisions of Section 4.1
hereof, Employer has provided to the Employee a loan
(the "Loan"). The Loan provides for payment of
interest only until June 30, 2005, requires yearly
payments of simple interest, at the same interest
rate as the Employer incurs to borrow funds from its
institutional lenders, is collateralized only by the
stock granted and the Employee otherwise is not
personally obligated to repay the Loan; provided that
upon the termination of this Agreement pursuant to
the provisions of Section 2(i) or (ii), the Loan
shall be fully paid off within three (3) months of
the Termination Date; upon the termination of this
Agreement pursuant to Section 2 (iv) hereof, the Loan
shall be fully paid off within one (1) year after the
Termination Date and upon a Change in Control, the
Loan shall be forgiven as hereinabove provided.
(ii) To the extent that the Employee has not repaid the
entire principal balance of the Loan plus any accrued
interest thereon before June 30, 2005, the Employee
agrees to sell, as promptly as practicable, a
sufficient number of shares of Common Stock to enable
the Employee to repay the then remaining outstanding
balance (unpaid principal balance and unpaid accrued
interest from time to time, the ("Unpaid Balance of
the Loan")) of the Loan after any taxes have been
provided for (the "Required Number of Shares"),
subject to the following conditions and requirements:
(A) Such sales shall be made in a manner which
shall reasonably not disrupt the orderly
trading of Common Stock, either through open
market or privately negotiated transactions
as long as no sales shall be made at a price
lower than 1/16 below the last sales price
of Common Stock publicly traded immediately
prior to such sale even if such prohibition
shall cause a delay in Employee's compliance
with his obligation to sell Common Stock as
provided hereinabove;
(B) If after June 30, 2005 the Employer proposes
to register any of its securities under the
Securities Act for sale to the public for
its own account or for the account of other
security holders or both, the Employer may,
upon 30 days prior written notice to the
Employee, require the Employee to include
the Required Number of Shares in such
offering and to sell such shares as part of
such offering. In such event, all of the
costs of registering the Required Number of
Shares, including but not limited to, all
registration and filing fees, printing
expenses, fees and disbursements of counsel
and independent public accountants for the
Employer; fees of the National Association
of Securities Dealers, Inc., state Blue Sky
fees and expenses, transfer taxes fees of
transfer agents and
150
<PAGE> 6
registrars and costs of insurance; and all
underwriting discounts and selling
commissions applicable to the sale of shares
other than the Required Number of Shares,
shall be paid by the Employer.
Notwithstanding the above, the Employee
shall pay all underwriting discounts and
selling commissions directly payable with
respect to the registration of the Required
Number of Shares; or
(C) If, as of December 31, 2005, Employee has
not yet disposed of the Required Number of
Shares, the Employer will repurchase from
the Employee the Required Number of Shares
at a per share price equal to 1/16 lower
than the average of the closing sales price
for the Common Stock as reported on the
national stock exchange on which the
Employer's stock trades for a ten (10) day
period prior to the date of such sale to the
Employer, provided, however, that such
repurchase shall only be required if it can
be effected in a manner that complies with
all applicable securities laws.
Notwithstanding anything contained herein to the contrary, the
Employee shall not be required to sell any of the Required Number of Shares
unless the net proceeds paid to the Employee as a result of such shares equals
or exceeds 150% of the IPO Price per share.
Nothing in this Section 4.2(ii) shall be construed to require
the Employee to sell common stock except in compliance with all applicable
securities laws. Any delay imposed due to compliance with requirements of
applicable securities laws shall suspend the Employee's obligation to sell
Common Stock as otherwise provided hereinabove.
Lastly, notwithstanding anything to the contrary contained in
this Section 4.2(ii), the Employee shall have the right but not the obligation,
at any time and from time to time, to repay the Unpaid Balance of the Loan from
his personal resources.
4.3 Securities Act. THE SHARES OF COMMON STOCK (THE
"SHARES") GRANTED PURSUANT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS, THE SHARES ARE OFFERED PURSUANT TO EXEMPTIONS PROVIDED BY
SECTION 4(2) OF THE ACT AND CERTAIN RULES AND REGULATIONS PROMULGATED PURSUANT
THERETO. THE SHARES MAY NOT BE TRANSFERRED BY THE EMPLOYEE IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL ACCEPTABLE TO EMPLOYER AND ITS COUNSEL,
WHICH ACCEPTANCE SHALL NOT BE UNREASONABLY WITHHELD, THAT SUCH REGISTRATION IS
NOT REQUIRED.
At such time as counsel for the Employee, which is acceptable
to the Employer, which acceptance shall not be unreasonably withheld, opines
that the aforementioned stock restriction and legend can be removed from the
certificates representing stock granted pursuant to Section 4. 1 (i) hereof in
accordance with applicable securities law, the Employer agrees to delete any
such legend from the certificates representing such shares that have been so
granted.
SECTION 5. PARTIAL RESTRAINT ON COMPETITION.
5.1 Definitions. For the purposes of this Section 5, the
following definitions shall apply.
(a) "Company Activities" means the business of
construction and maintenance of railway beds
and tracks; construction and maintenance of
elevated rail systems and structures;
construction and maintenance of railway
switching and signaling equipment,
distributorships and supply in the field of
rail and railway construction materials;
distributorships and supply in the field of
electromechanical controls for use in the
railroad industry, namely, railway switching
equipment and railway signaling equipment;
and design for others in the field of
railroad industry, namely, engineering
design of rail and railway related
structures and equipment or any other
business of the Employer and its
consolidated (for financial accounting
purposes) subsidiaries (the "Consolidated
Group") which said entities are engaged in
on the Termination Date as long as such
business generated gross sales of at least
10% or more of the total gross sales of the
Consolidated Group for the most recent
fiscal year of the Employer before or on the
Termination Date.
Company Activities shall not include
investing in entities which sell, or the
provision by the Employee of sales, of
financial services or products of any kind
or nature or consulting with
151
<PAGE> 7
respect to such sales of such services
and/or products ("Permitted Activity" or
"Permitted Activities").
(b) "Competitor" means any business, individual,
partnership, joint venture, association,
firm, corporation or other entity, other
than the Employer or its affiliates or
subsidiaries, engaged, wholly or partly, in
Company Activities.
(c) "Competitive Position" means (i) having any
financial interest in a Competitor,
including but not limited to, the direct or
indirect ownership or control of all or any
portion of a Competitor, or acting as a
partner, officer, director, principal, agent
or trustee of any Competitor or (ii)
engaging in any employment or independent
contractor arrangement, business or other
activity with any Competitor whereby
Employee will serve such Competitor in any
senior managerial capacity.
(d) "Confidential Information" means any
confidential, proprietary business
information or data belonging to or
pertaining to Employer that does not
constitute a "Trade Secret" (as hereinafter
defined) and that is not generally known by
or available through legal means to the
public, including, but not limited to,
information regarding Employer's customers
or actively sought prospective customers,
acquisition targets, suppliers,
manufacturers and distributors gained by
Employee as a result of his employment with
Employer; but shall not include any
information known by the Employee before
March 1, 1998.
(e) "Customer" means actual customers or
actively sought prospective customers of
Employer during the Term.
(f) "Noncompete Period" or "Nonsolicitation
Period" means the period beginning the date
hereof and ending on the second anniversary
of the termination of Employee's employment
with Employer; provided that such Noncompete
Period or Nonsolicitation Period shall end
on the Termination Date in the event this
Agreement is terminated pursuant to the
provisions of Section 2(iii) hereof.
(g) "Territory" means the area within a one
hundred (100) mile radius of any corporate
office or job site of Employer or any of its
subsidiaries, affiliates or divisions.
(h) "Trade Secrets" means information or data of
or about Employer, including but not limited
to technical or non-technical data,
formulas, patterns, compilations, programs,
devices, methods, techniques, drawings,
processes, financial data, financial plans,
products plans, or lists of actual or
potential customers, clients, distributees
or licensees, information concerning
Employer's finances, services, staff,
contemplated acquisitions, marketing
investigations and surveys, that are not
generally known to, and/or are not readily
ascertainable by legal means by, other
persons.
(i) "Work Product" means any and all work
product property, data documentation or
information of any kind prepared, conceived,
discovered, developed or created by Employee
for Employer or its affiliates, or any of
Employer's or its affiliates' clients or
customers for utilization in Company
Activities, not generally known by and/or
not readily ascertainable by proper means by
other persons who can obtain economic value
from their disclosure or use.
5.2 Trade Name and Confidential Information.
(a) Employee hereby agrees that (i) with regard
to each item constituting all or any portion
of the Trade Secrets and Confidential
Information, at all times during the Term
and all times during which such item
continues to constitute a Trade Secret or
Confidential Information, respectively:
(i) Employee shall not, directly or by
assisting others own, manage,
operate, join, control or
participate in the ownership,
management, operation or control of,
or be connected in any manner with,
any business conducted under any
corporate or trade name of Employer
or name confusingly similar thereto,
without the prior written consent of
Employer;
152
<PAGE> 8
(ii) Employee shall hold in confidence
all Trade Secrets and all
Confidential Information and will
not, either directly or indirectly,
use, sell, lend, lease, distribute,
license, give, transfer, assign,
show, disclose, disseminate,
reproduce, copy, appropriate or
otherwise communicate any Trade
Secrets or Confidential Information,
without the prior written consent of
Employer; and
(iii) Employee shall immediately notify
Employer of any unauthorized
disclosure or use of any Trade
Secrets or Confidential Information
of which Employee becomes aware.
Employee shall assist Employer, to
the extent necessary, in the
procurement or any protection of
Employer's rights to or in any of
the Trade Secrets or Confidential
Information.
(b) Upon the request of Employer and, in any
event, upon the termination of Employee's
employment with Employer, Employee shall
deliver to Employer all memoranda, notes,
records, manuals and other documents,
including all copies of such materials and
all documentation prepared or produced in
connection therewith, pertaining to the
performance of Employee's services hereunder
or Employer's business or containing Trade
Secrets or Confidential Information, whether
made or complied by Employee or furnished to
Employee from another source by virtue of
Employee's employment with Employer.
(c) To the greatest extent possible, all Work
Product shall be deemed to be "work made for
hire" (as defined in the Copyright Act, 17
U.S.C.A.ss.ss.101 et seq., as amended) and
owned exclusively by Employer. Employee
hereby unconditionally and irrevocably
transfers and assigns to Employer all
rights, title and interest Employee may have
in or to any and all Work Product,
including, without limitation, all patents,
copyrights, trademarks, service marks and
other intellectual property rights. Employee
agrees to execute and deliver to Employer
any transfers, assignments, documents or
other instruments which Employer may deem
necessary or appropriate to vest complete
title and ownership of any and all such Work
Product, and all rights therein, exclusively
in Employer.
5.3 Noncompetition.
(a) The parties hereto acknowledge that Employee
is conducting Company Activities throughout
the Territory. Employee acknowledges that to
protect adequately the interest of Employer
in the business of Employer it is essential
that any noncompete covenant with respect
thereto cover all Company Activities and the
entire Territory.
(b) Employee hereby agrees that, during the Term
and the Noncompete Period, Employee will
not, in the Territory, either directly or
indirectly, alone or in conjunction with any
other party, accept, enter into or take any
action in conjunction with or in furtherance
of a Competitive Position with Employer.
Employee shall notify Employer promptly in
writing if Employee receives an offer of a
Competitive Position during the Noncompete
Term, and such notice shall describe all
material terms of such offer.
Nothing contained in this Section 5 shall prohibit Employee
from acquiring not more than five percent (5%) of any Competitor, or from
acquiring any percentage of any company which is non-competitive with Employer,
whose common stock is publicly traded on a national securities exchange or in
the over-the-counter market or from engaging in Permitted Activities.
5.4 Nonsolicitation During Employment Term. Employee
hereby agrees that Employee will not, during the Term, either directly or
indirectly, alone or in conjunction with any other party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the Customer
with services or products competitive with
those offered by Employer during the Term,
other than a Permitted Activity, or
(b) solicit or attempt to solicit any officer,
director, employee, consultant, contractor,
agent, lessor, lessee, licensor, licensee,
supplier or any shareholder of any of the
Founding Companies or other personnel of
Employer or any of its affiliates or
subsidiaries to terminate, alter or lessen
that
153
<PAGE> 9
party's affiliation with Employer or such
affiliate or subsidiary or to violate the
terms of any agreement or understanding
between such employee, consultant,
contractor or other person and Employer.
5.5 Nonsolicitation During Nonsolicitation Period.
Employee hereby agrees that Employee will not, during the Nonsolicitation.
Period, either directly or indirectly, alone or in conjunction with any other
party:
(a) solicit, divert or appropriate or attempt to
solicit, divert or appropriate, any Customer
for the purpose of providing the Customer
with services or products that qualify as
Company Activities during the Term;
provided, however, that the covenant in this
clause shall limit Employee's conduct only
with respect to those Customers with whom
Employee had substantial contact (through
direct or supervisory interaction with the
Customer or the Customer's account) during a
period of time up to but no greater than two
(2) years prior to the last day of the Term;
or
(b) solicit or attempt to solicit any officer,
director, employee, consultant, contractor,
agent, lessor, lessee, licensor, licensee,
supplier or any shareholder of any of the
Founding Companies or other personnel of
Employer or any of its affiliates or
subsidiaries residing at the time of the
solicitation in the Territory to terminate,
alter or lessen that party's affiliation
with Employer or such affiliate or
subsidiary or to violate the terms of any
agreement or understanding between such
employee, consultant, contractor or other
person and Employer, other than with respect
to Permitted Activities. For purposes of
this clause (b), employees, consultants,
contractors, or other personnel are those
with knowledge of or access to Trade Secrets
and Confidential Information of the
Employer.
5.6 Binding Arbitration. The parties shall refer any
dispute as to whether or not the Employee has violated the provisions of this
Section 5 to a mediator and, in the event that mediation is unsuccessful, such
dispute shall be resolved by binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. The
arbitrator shall be selected by the mediator. The cost of the mediator and, if
necessary, the arbitrator and all other costs of the mediation and, if
necessary, the arbitration shall be split equally between the Employee and the
Employer, except for attorneys fees which shall be paid by the party employing
such attorney.
SECTION 6. MISCELLANEOUS.
6.1 Severability. The covenants in this Agreement shall
be construed as covenants independent of one another and as obligations distinct
from any other contract between Employee and Employer.
6.2 Survival of Obligations. The covenants in Section 5
of this Agreement shall survive termination of Employee's employment, except in
the case of termination of this Agreement pursuant to the provisions of Section
2(iii) hereof, in which case they shall terminate also and have no further force
or legal effect as of the Termination Date.
6.3 Notices. Any notice or other document to be given
hereunder by any party hereto to any other party hereto shall be in writing and
delivered in person or by courier, by telecopy transmission or sent by any
express mail service, postage or fees prepaid at the following addresses:
EMPLOYER
RailWorks Corporation
1104 Kenilworth Drive.
Suite 301
Baltimore, MD 21204
Attention: RailWorks Chief Executive Officer
Telecopy No.: (410) 825-6920
EMPLOYEE
Mr. John G. Larkin
154
<PAGE> 10
403 Somerset Road
Baltimore, Maryland 21210
or at such other address or number for a party as shall be specified by like
notice. Any notice which is delivered in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party or its agent.
6.4 Binding Effect. This Agreement inures to the benefit
of, and is binding upon, Employer and their respective successors and assigns,
and Employee, together with Employee's executor, administrator, personal
representative, heirs, and legatees.
6.5 Entire Agreement. This Agreement is intended by the
parties hereto to be the final expression of their agreement with respect to the
subject matter hereof and is the complete and exclusive statement of the terms
thereof, notwithstanding any representations, statements or agreements to the
contrary heretofore made. This Agreement supersedes and terminates all prior
employment and compensation agreements, arrangements and understandings between
or among Employer and Employee including, without limitation, the Prior
Agreement. This Agreement may be modified only by a written instrument signed by
all of the parties hereto.
6.6 Governing Law. This Agreement shall be deemed to be
made in, and in all respects shall be interpreted, construed, and governed by
and in accordance with, the laws of the State of Maryland. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party hereto by any court of other governmental or judicial authority or by any
board of arbitrators by reasons of such party or its counsel having or being
deemed to have structured or drafted such provision.
6.7 Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
6.8 Specific Performance. Each party hereby agrees that
any remedy at law for any breach of provisions contained in this Agreement shall
be inadequate and that the other parties hereto shall be entitled to specific
performance and any other appropriate injunctive relief in addition to any other
remedy such party might have under this Agreement or at law or in equity.
6.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
6.10 Other Employment Agreements. Without the prior
written consent of Employee, no person that is subsequently hired by RailWorks
in a position comparable to the position held by Employee shall be offered an
employment agreement that contain benefits that are more favorable to such
person than the terms contained herein.
SIGNATURES APPEAR ON THE NEXT PAGE.
155
<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER
RAILWORKS CORPORATION
By: (SEAL)
--------------------------------
Name:
Title:
EMPLOYEE
By: (SEAL)
--------------------------------
John Larkin
156
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF RAILWORKS CORPORATION FOR THE THREE MONTHS ENDED MARCH
31, 2000 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 3,191,000
<SECURITIES> 0
<RECEIVABLES> 137,324,000
<ALLOWANCES> 360,000
<INVENTORY> 24,859,000
<CURRENT-ASSETS> 252,620,000
<PP&E> 89,914,000
<DEPRECIATION> 14,543,000
<TOTAL-ASSETS> 577,264,000
<CURRENT-LIABILITIES> 119,091,000
<BONDS> 0
0
14,000
<COMMON> 143,000
<OTHER-SE> 127,902,000
<TOTAL-LIABILITY-AND-EQUITY> 577,264,000
<SALES> 125,365,000
<TOTAL-REVENUES> 125,365,000
<CGS> (101,337,000)
<TOTAL-COSTS> (101,337,000)
<OTHER-EXPENSES> (12,305,000)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (7,960,000)
<INCOME-PRETAX> 4,227,000
<INCOME-TAX> (1,902,000)
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,325,000
<EPS-BASIC> .16
<EPS-DILUTED> .15
</TABLE>
