<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 1999
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File
No. 1-5210
AmeriSteel Corporation
Incorporated in
State of Florida
Employer Identification
No. 59-0792436
5100 W. Lemon Street
Tampa, Florida 33609
Mailing Address:
P. O. Box 31328
Tampa, Florida 33631-3328
Telephone No. (813)286-8383
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, and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No____________
-------
As of September 30, 1999 the registrant had 10,586,375 shares $.01 par value,
Class A common stock outstanding.
<PAGE>
PART I--FINANCIAL INFORMATION
-----------------------------
ITEM I. FINANCIAL STATEMENTS
AMERISTEEL CORPORATION
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
($ in thousands)
<TABLE>
<CAPTION>
September 30, March 31,
1999 1999
(Unaudited)
---------------- -----------------
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents $ 6,960 $ 3,219
Accounts receivable, less
allowances of $1,399
and $1,000 at September 30
and March 31, 1999,
respectively, for 96,162 71,516
estimated losses
Inventories 115,553 121,818
Deferred tax assets 5,100 5,100
Other current assets 2,746 2,074
--------- --------
TOTAL CURRENT ASSETS 226,521 203,727
ASSETS HELD FOR SALE 6,017 13,618
PROPERTY, PLANT AND EQUIPMENT
Land and improvements 17,338 16,173
Building and improvements 40,548 39,007
Machinery and equipment 271,732 269,864
Construction in progress 35,221 18,523
IRB restricted cash 1,187 1,476
--------- --------
366,026 345,043
Less allowances for depreciation (105,371) (97,731)
--------- --------
NET PROPERTY, PLANT AND EQUIPMENT 260,655 247,312
GOODWILL 83,038 77,513
DEFERRED FINANCING COSTS 3,825 3,495
OTHER ASSETS 9 118
--------- --------
TOTAL ASSETS $ 580,065 $545,783
========= ========
</TABLE>
See notes to consolidated financial statements
<PAGE>
AMERISTEEL CORPORATION
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION -- continued
($ in thousands)
<TABLE>
<CAPTION>
September 30, March 31,
1999 1999
(Unaudited)
------------- ---------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Trade accounts payable $ 52,451 $ 41,486
Salaries, wages and employee benefits 25,672 19,036
Environmental remediation 2,762 5,226
Other current liabilities 3,963 4,268
Interest payable 5,625 5,558
Current maturities of long-term borrowings 3,526 3,333
--------- ---------
TOTAL CURRENT LIABILITIES 93,999 78,907
LONG-TERM BORROWINGS, LESS CURRENT PORTION 191,227 191,418
OTHER LIABILITIES 21,929 21,815
DEFERRED TAX LIABILITIES 48,500 48,500
SHAREHOLDERS' EQUITY
Class A Common Stock, $.01 par value, 100,000,000 shares authorized at
September 30 and March 31, 1999. 10,586,375 and 0 shares issued and
outstanding at September 30 and March 31, 1999, respectively. 106 -
Class B Common Stock, $.01 par value, 22,000,000 shares authorized at
September 30 and March 31, 1999. 0 and 10,553,263 shares issued and
outstanding at September 30 and March 31, 1999, respectively. - 106
Capital in excess of par 167,389 166,950
Retained earnings 57,132 38,552
Deferred compensation (217) (465)
--------- ---------
TOTAL SHAREHOLDERS' EQUITY 224,410 205,143
--------- ---------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 580,065 $ 545,783
========= =========
</TABLE>
See notes to consolidated financial statements
<PAGE>
AMERISTEEL CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
($ in thousands except per share data)
<TABLE>
<CAPTION>
Six Months Ended Three Months Ended
September 30, September 30,
1999 1998 1999 1998
(unaudited) (unaudited) (unaudited) (unaudited)
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
NET SALES $ 370,170 $ 365,464 $ 182,930 $ 176,061
Operating Expenses:
Cost of sales 292,885 300,767 144,881 146,776
Selling and administrative 21,050 16,992 10,498 8,180
Depreciation 11,351 11,270 5,714 5,682
Amortization of goodwill 2,194 2,065 1,110 1,032
Other (income) expense, net 2,780 - 2,791 -
---------- ---------- ---------- ----------
330,260 331,094 164,994 161,670
---------- ---------- ---------- ----------
INCOME FROM OPERATIONS 39,910 34,370 17,936 14,391
Other Expenses:
Interest 7,319 8,413 3,590 3,410
Amortization of deferred financing costs 222 216 111 85
---------- ---------- ---------- ----------
7,541 8,629 3,701 3,495
INCOME BEFORE INCOME TAXES 32,369 25,741 14,235 10,896
Income taxes 13,789 10,845 6,102 4,652
---------- ---------- ---------- ----------
INCOME BEFORE EXTRAORDINARY ITEM 18,580 14,896 8,133 6,244
EXTRAORDINARY ITEM NET OF TAXES - (2,073) - -
---------- ---------- ---------- ----------
NET INCOME $ 18,580 $ 12,823 $ 8,133 $ 6,244
========== ========== ========== ==========
EARNINGS PER COMMON SHARE - BASIC
Income before extraordinary item $ 1.76 $ 1.41 $ .77 $ .59
Extraordinary item - (.20) - -
---------- ---------- ---------- ----------
Net income $ 1.76 $ 1.21 $ .77 $ .59
========== ========== ========== ==========
EARNINGS PER COMMON SHARE - DILUTED
Income before extraordinary item $ 1.73 $ 1.40 $ .76 $ .58
Extraordinary item - (.20) - -
---------- ---------- ---------- ----------
Net income $ 1.73 $ 1.20 $ .76 $ .58
========== ========== ========== ==========
Weighted average number of common shares outstanding 10,547 10,563 10,545 10,561
Weighted average number of common and common
equivalent shares outstanding 10,717 10,677 10,714 10,675
</TABLE>
See notes to consolidated financial statements
<PAGE>
AMERISTEEL CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
($ in thousands)
<TABLE>
<CAPTION>
Six Months Ended
September 30, September 30,
1999 1998
(Unaudited) (Unaudited)
------------- -------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 18,580 $ 12,823
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 13,767 13,551
Extraordinary item - 3,398
Other (including (gain) loss on dispositions and deferred
compensation) 894 590
Changes in operating assets and liabilities:
Accounts receivable, net (24,646) 776
Inventories 13,556 5,127
Other assets (509) (2,156)
Current and other liabilities 15,013 (4,587)
------------- -------------
NET CASH PROVIDED BY OPERATING ACTIVITIES 36,655 29,522
INVESTING ACTIVITIES
Additions to property, plant and equipment (22,918) (8,565)
Asset acquisition (17,664) -
Proceeds from sales of property, plant and equipment 380 151
Proceeds from sale of assets held for sale 7,119 213
Use of restricted IRB funds 280 705
------------- -------------
NET CASH USED IN INVESTING ACTIVITIES (32,803) (7,496)
FINANCING ACTIVITIES
Proceeds from issuance of Senior Notes - 130,000
Proceeds from Tennessee Valley Authority loan 1,500 -
Payments to short-term and long-term borrowings, net (1,498) (49,447)
Redemption of First Mortgage Notes - (100,000)
Call premium on redemption of First Mortgage Notes - (1,916)
Additions to deferred financing costs (552) (537)
Proceeds from sale of common stock 729 30
Redemption of common stock (290) (209)
------------- -------------
NET CASH USED IN FINANCING ACTIVITIES (111) (22,079)
------------- -------------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 3,741 (53)
Cash and cash equivalents at beginning of period 3,219 1,258
------------- -------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 6,960 $ 1,205
============= =============
</TABLE>
<PAGE>
AMERISTEEL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE A -- BASIS OF PRESENTATION
The consolidated financial statements include the accounts of AmeriSteel
Corporation, a Florida corporation, and its wholly owned subsidiary (AmeriSteel
Finance Corporation, a Delaware corporation) (together, the "Company") after
elimination of all significant intercompany balances and transactions. As of
April 1, 1996, the Company changed its name from Florida Steel Corporation
(which it had used since 1956) to AmeriSteel Corporation. The predecessor of the
Company was formed in 1937. The Company is a majority-owned subsidiary of FLS
Holdings, Inc. ("FLS").
The accompanying unaudited consolidated financial statements have been prepared
in accordance with the instructions for Form 10-Q and, therefore, do not include
all the information or footnotes necessary for a complete presentation of
financial condition, results of operations and cash flows in conformity with
generally accepted accounting principles. However all adjustments which, in the
opinion of management, are necessary for a fair presentation have been included.
Such adjustments consisted of only normally recurring items.
It is suggested that these consolidated financial statements be read in
conjunction with the financial statements and the notes thereto included in the
Company's latest Annual Report on Form 10-K. The results of the three and six
months ended September 30, 1999 are not necessarily indicative of the results to
be expected for the fiscal year ending March 31, 2000.
NOTE B - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Reclassifications: Certain amounts in the prior period financial statements have
- -----------------
been reclassified to conform to the current fiscal financial statement
presentation.
NOTE C -- INVENTORIES
Inventories consist of the following:
($ in thousands)
<TABLE>
<CAPTION>
September 30 March 31,
1999 1999
(Unaudited)
------------- -------------
<S> <C> <C>
Finished goods $ 68,392 $ 72,688
Work in-process 12,961 16,565
Raw materials and operating supplies 34,200 32,565
------------- -------------
$ 115,553 $ 121,818
============= =============
</TABLE>
<PAGE>
AMERISTEEL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE D -- BORROWINGS
Long-term borrowings consist of the following:
($ in thousands)
<TABLE>
<CAPTION>
September 30, March 31,
1999 1999
----------------- ---------------
<S> <C> <C>
Revolving Credit Agreement $ 13,905 $ 13,690
Industrial Revenue Bonds 34,395 34,395
Senior Notes 130,000 130,000
Subordinated Intercompany Note 15,000 16,666
TVA Loan 1,453 -
----------- ----------
Total Borrowings 194,753 194,751
Less Current Maturities 3,526 3,333
----------- ----------
Total long-term borrowings $ 191,227 $ 191,418
=========== ==========
</TABLE>
The TVA Loan represents a $1.5 million note payable to the Tennessee Valley
Authority that amortizes over seven years and is secured by certain equipment at
the Knoxville, Tennessee mill.
NOTE E -- ENVIRONMENTAL MATTERS
As the Company is involved in the manufacture of steel, it produces and uses
certain substances that may pose environmental hazards. The principal hazardous
waste generated by current and past operations is emission control dust (EC
dust), a residual from the production of steel in electric arc furnaces.
Environmental legislation and regulation at both the federal and state level
over EC dust is subject to change, which may change the cost of compliance. EC
dust generated in current production processes is collected, handled and
disposed of in a manner which management believes meets all current federal and
state environmental regulations. The costs of collection and disposal are being
expensed and paid currently from operations. In addition, the Company has
handled and disposed of EC dust in other manners in previous years, and is
responsible for the remediation of certain sites where such EC dust was
generated and/or disposed.
In general, the Company's estimate of the remediation costs is based on its
review of each site and the nature of the remediation activities to be
undertaken. The Company's process for estimating remediation costs includes
determining for each site the expected remediation methods, and the estimated
cost for each step of the remediation. In all such determinations, the Company
employs outside consultants and service providers where necessary, to assist in
making such determinations. Although the ultimate costs associated with the
remediation are not presently known, the Company has estimated the total
remaining costs to be approximately $5.9 million with these costs recorded as a
liability as of September 30, 1999. Of this amount, the Company expects to pay
approximately $2.8 million within one year. The timing of the remaining future
payments is uncertain due to the various remediation processes involved. The
Company's four most significant environmental sites are detailed below.
The Tampa mill site contains slag and soil that is contaminated with EC dust and
polychlorinated biphenyl ("PCBs") generated by past operations. The volume and
mass estimates of the contamination is based on analytical data from soil
borings, soil samples and groundwater-monitoring wells. The remediation approach
selected by the Company, excavation and on-site treatment and disposal, was
approved, and a permit issued, by the U.S. Environmental Protection Agency
during
<PAGE>
AMERISTEEL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE E -- ENVIRONMENTAL MATTERS - continued
fiscal 1996 and by the Florida Department of Environmental Protection during
fiscal 1998 and the Company received a signed Consent Order in fiscal 1998.
Consequently, the remediation work is in progress. The remediation cost
estimates are based on the Company's previous experience with comparable
projects as well as estimates provided by outside environmental consultants. The
Company is responsible for the total remediation costs and currently estimates
the remaining costs to be approximately $3.9 million for this site. The Company
expects cleanup at this site to be substantially completed by fiscal 2001.
At the Jackson, Tennessee mill and two third party locations in Utah, EC dust
and other materials contaminated with Cesium 137, a man-made, radioactive
material (incident-related material), were formerly stored in containers on
these sites. The treatment, transport and disposal of these materials was based
on the final Nuclear Regulatory Commission "Technical Position," dated March 20,
1997. The remediation cost estimate was based on a signed contract for
treatment, transportation and disposal. Final disposition of the contaminated
materials was completed during fiscal 1999.
The Sogreen site, a third party site, contains EC dust from the Company that was
stored at this recycling location. The Company has been named as a potentially
responsible party (PRP) for this site, and thus its estimated share of the
remediation costs is approximately 43% (based on analytical data from soil
borings and samples) of the total estimated remediation cost of approximately
$4.3 million. The estimate includes the cost of soil remediation and groundwater
remediation based on an approach approved by the Georgia Environmental
Protection Division. If the other PRPs were not to fulfill their obligations,
the Company's management believes that the impact of additional future costs
attributable to the Sogreen site on the Company's results of operations,
financial condition and liquidity, would not be significant. The cleanup at this
site was substantially completed during fiscal 1999. The Company currently
estimates its remaining obligation to be approximately $100 thousand.
The Stoller site, a third party site, contained metals from other PRPs and EC
dust from the Company that was stored at this recycling location. The Company
was named as a PRP for this site. Outside contractors measured the remediation
volumes and masses during the now complete cleanup. On-site treatment, disposal
and construction of the vault cap were completed by the PRPs under a consent
order with the State of South Carolina. The soil cleanup at this site was
completed during fiscal 1999. A Settlement Agreement was lodged by the State of
South Carolina with the Federal Court in 1997. That Agreement contains an
allocation which attributes approximately 2% of the remaining estimated $10
million groundwater remediation cost to the Company. The non-participating PRPs
intervened in the court proceedings to contest approval of the Agreement. In
August 1999, the Federal Court ruled the Administrative Record was not
sufficient to make a ruling on the Settlement Agreement. The Federal Court
litigation is currently stayed while the State of South Carolina meets with all
PRPs with a goal of obtaining a global settlement of all financial
responsibilities of the site.
Based on past use of certain technologies and remediation methods by third
parties, evaluation of those technologies and methods by the Company's
consultants and quotations and third-party estimates of costs of
remediation-related services provided to the Company, or which the Company and
its consultants are aware, the Company and its consultants believe that the
Company's cost estimates are reasonable. In light of the uncertainties inherent
in determining the costs associated with the clean-up of such contamination,
including the time periods over which such costs must be paid, the extent of
contribution by parties which are jointly and severally liable, and the nature
and timing of payments to be made under cost sharing arrangements, there can be
no assurance the ultimate costs of remediation may not be greater or less than
the estimated remediation costs.
<PAGE>
AMERISTEEL CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE F -- CHANGE OF CONTROL
On September 27, 1999, Gerdau S.A. ("Gerdau"), a Brazilian minimill producer,
through one or more subsidiaries, purchased 88% of the outstanding shares of FLS
from Kyoei Steel Ltd. ("Kyoei") with Kyoei retaining the remaining 12% ownership
interest in FLS. FLS owns approximately 85% of the outstanding common stock of
the Company. As a result of Gerdau's purchase of a majority interest in FLS,
Gerdau has the right to elect a majority of the Board of Directors of FLS, which
in turn provides Gerdau with voting and investment control of the shares of
common stock of the Company owned by FLS. Concurrently with the purchase, all
Class B common stock of AmeriSteel Corporation automatically converted to Class
A common stock so that there is now only one class of common stock outstanding.
NOTE G -- SUBSEQUENT EVENTS
On October 27, 1999 the Company, through its trustee, State Street Bank and
Trust Company, mailed to the holders of its 8 3/4% Senior Notes Due 2008, a
Change of Control notice establishing December 23, 1999 as the "Change of
Control Put Date" whereby note holders have the option to put the notes to the
Company at a price of 101% of the face value of the notes, plus accrued
interest.
On October 20, 1999 the Company entered into a new $70 million short term
commercial bank credit facility (the "364 Day Facility"), to fund (in
conjunction with existing Revolver capacity) the possible purchase of all of the
8 3/4% Senior Notes Due 2008 should 100% of the outstanding notes be put to the
Company.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATION
Factors That May Affect Operating Results
- -----------------------------------------
This report contains certain forward-looking statements that are based on the
beliefs of the Company's management, as well as assumptions made by, and
information currently available to, the Company's management. Such statements
include, among others, (i) the highly cyclical nature and seasonality of the
steel industry, (ii) the fluctuations in the cost and availability of raw
materials, (iii) the possibility of excess production capacity, (iv) the
potential costs of environmental compliance, (v) the risks associated with
potential acquisitions, (vi) further opportunities for industry consolidation,
(vii) the impact of inflation and (viii) the fluctuations in the cost of
electricity. Because such statements involve risks and uncertainties, actual
actions and strategies and the timing and expected results thereof may differ
materially from those expressed or implied by such forward-looking statements.
The following presentation of management's discussion and analysis of the
Company's financial condition and results of operations should be read in
conjunction with the Company's Annual Report on Form 10-K as filed with the
Securities and Exchange Commission.
General
The results of operations of the Company are largely dependent on the level of
construction and general economic activity in the U.S. The Company's sales are
seasonal with sales in the Company's fiscal first and second quarters generally
stronger than the rest of the year. The Company's cost of sales includes the
cost of its primary raw material, steel scrap, the cost of converting scrap to
finished steel products, the cost of warehousing and handling finished steel
products and freight costs. The following table sets forth information regarding
recent results of operations.
<PAGE>
AMERISTEEL CORPORATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATION - Continued
<TABLE>
<CAPTION>
(in thousands, except per share and per ton data) Six Months Ended Three Months Ended
September 30, September 30,
1999 1998 1999 1998
(unaudited) (unaudited) (unaudited) (unaudited)
------------ ------------- ------------- ---------------
<S> <C> <C> <C> <C>
Net sales $ 370,170 $ 365,464 $ 182,930 $ 176,061
Cost of sales 292,885 300,767 144,881 146,776
Cost of sales as percent of net sales 79.1% 82.3% 79.2% 83.4%
Selling and administrative 21,050 16,992 10,498 8,180
Depreciation 11,351 11,270 5,714 5,682
Amortization of goodwill 2,194 2,065 1,110 1,032
Other (income) expense, net 2,780 - 2,791 -
---------- ----------- ----------- ------------
Income from operations 39,910 34,370 17,936 14,391
Interest expense 7,319 8,413 3,590 3,410
Deferred finance costs 222 216 111 85
---------- ----------- ----------- ------------
Income before income taxes and extraordinary item 32,369 25,741 14,235 10,896
Income tax 13,789 10,845 6,102 4,652
---------- ----------- ----------- ------------
Income before extraordinary item 18,580 14,896 8,133 6,244
Extraordinary item net of taxes - (2,073) - -
---------- ----------- ----------- ------------
Net income $ 18,580 $ 12,823 $ 8,133 $ 6,244
========== =========== =========== ============
Shipped Tons
- ------------
Mill finished goods
Stock rebar 356 327 164 159
Merchant bar 351 325 174 151
Rods 38 38 13 19
---------- ----------- ----------- ------------
Subtotal mill finished goods 745 690 351 329
Fabricated rebar 243 188 128 94
Billets 66 60 36 34
---------- ----------- ----------- ------------
Total shipped tons 1,054 938 515 457
========== =========== =========== ============
Average Selling Prices ($ Per Ton)
- ----------------------------------
Mill finished goods
Stock rebar $ 282 $ 320 $ 292 $ 317
Merchant bar 328 383 331 382
Rods 287 321 301 311
---------- ----------- ----------- ------------
Average mill finished goods 304 348 312 345
Fabricated rebar 451 457 447 458
Billets 204 232 205 230
Average mill finished goods prices (per ton) $ 304 $ 348 $ 312 $ 345
Average yielded scrap cost (per ton) 100 130 103 127
---------- ----------- ----------- ------------
Average metal spread (per ton) $ 204 $ 218 $ 209 $ 218
========== =========== =========== ============
Average mill conversion costs (per ton) $ 125 $ 129 $ 128 $ 128
========== =========== =========== ============
</TABLE>
<PAGE>
Net Sales: For both the three and six month periods ended September 30, 1999
- ---------
compared to the same periods in the prior year, lower prices for finished steel
products reflect the impact of market competition from cheaply priced imports
despite strong demand for the Company's products. For both the three and six
month periods ending September 30, 1999, lower mill finished goods selling
prices reduced net sales, however to some extent, these were offset by increases
in sales tons of mill finished goods. The April 1999 acquisition of rebar
fabricating operations in the northeast also increased net sales for the three
and six month periods ending September 30, 1999.
Cost of Sales: Cost of sales was reduced for the three and six month periods
- -------------
ending September 30, 1999 compared to the same periods in the prior year due
primarily to lower scrap costs per ton, combined with lower conversion costs.
Selling and Administrative: Selling and administrative expenses for the three
- --------------------------
and six month periods ended September 30, 1999 increased 28% and 24%,
respectively over the same periods last year. The increases relate to the
acquired rebar fabricating operations in the northeast, a loss on sale of
assets, increased professional fees, and other costs.
Other (Income) Expense, Net: Other operating costs of $2.8 million incurred in
- ---------------------------
the September 30, 1999 quarter include $8.3 million in charges (primarily from
accelerated vesting of stock appreciation rights) associated with the Change of
Control partially offset by $5.5 million of income received from settlements
with electrode suppliers for price fixing violations.
Liquidity and Capital Resources
- -------------------------------
Net cash provided by operating activities for the six months ended September 30,
1999 was $36.7 million compared to $29.5 million for the same period last year.
The Company spent $17.7 million to purchase assets associated with its rebar
fabricating division in the northeast and $22.9 million for additions to
property, plant and equipment, primarily relating to the new melt shop at the
Knoxville, Tennessee mill.
On October 20, 1999 the Company entered into a new $70 million short term
commercial bank credit facility, (the "364 Day Facility"), to fund (in
conjunction with existing Revolver capacity) the possible purchase of all of the
8 3/4% Senior Notes Due 2008 should 100% of the outstanding notes be put to the
Company.
The Company believes that the amounts available from operating cash flows and
funds available through its Revolving Credit Agreement are sufficient to meet
its expected operating cash needs and planned capital expenditures for the
foreseeable future. The Company continues to comply with all of the covenants of
its loan agreements.
YEAR 2000
- ---------
Through September 30, 1999 the Company has spent approximately $3 million
towards costs directly associated with readiness issues relating to the Year
2000 issue, including the purchase of network compatible computer hardware and
software. The Company does not anticipate any significant additional spending on
Year 2000 readiness issues.
The Company prioritized its Year 2000 compliance issues as follows: safety
concerns, payroll requirements, production capabilities, collecting accounts
receivable and finally administrative matters. From a safety and production
standpoint, manufacturing equipment at all plants has been reviewed on an
individual basis. This includes inspections and audits conducted by equipment
vendors. Corrective actions were and are being taken as needed. These include
manual resetting of stand-alone clocks, upgrading software, replacing
components, etc. Accounting systems have been modified or replaced to be year
2000 compliant. From a customer perspective, we requested information on their
individual statuses to assure product ordering and cash flow is not materially
disrupted, and for those vendors with electronic links to the Company's systems,
the integrity of the data links are not compromised. Vendors of all types were
and are being queried as to their level of compliance. The Company continues to
be alert to minor Year 2000 issues and is addressing those as they become aware.
<PAGE>
The Company is confident that it has addressed all significant Year 2000 systems
under its control and is confident that any negative consequences of the year
2000 issue will not materially adversely effect the Company's performance. The
most likely worst case scenario is that short production slowdowns may occur,
however in this event, during downtime, the Company can perform routine and
scheduled maintenance operations. Year 2000 problems, if any, would be expected
to occur during the winter months when production is at normally low seasonal
levels. The Company does not have any formal contingency plan in place nor does
it deem one necessary under the circumstances.
PART II -- OTHER INFORMATION
----------------------------
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Section 4.4 of the Company's Articles of Incorporation provides, in general,
that upon Kyoei and Phillip E. Casey no longer having voting control of the
Company, each of the outstanding shares of Class B common stock of the Company
will automatically convert into one share of Class A common stock. On September
27, 1999, Kyoei sold approximately 88% of the issued and outstanding common
stock of FLS to Gerdau. As a result, Kyoei and Phillip E. Casey ceased to have
voting control over the Company, the automatic conversion provision of Section
4.4 of the Articles of Incorporation was triggered and each outstanding share of
Class B common stock of the Company was automatically converted into one share
of Class A common stock.
Shares of Class B common stock have two votes per share and shares of Class A
common stock have one vote per share. With the exception of voting rights,
shares of Class A common stock and shares of Class B common stock generally
carry the same rights, powers, preferences, privileges and limitations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On July 27, 1999, the Company mailed to its stockholders an Information
Statement to inform the Company's stockholders of the following actions that
were approved by the Board of Directors of the Company and which the majority of
the stockholders of the Company had indicated their intention to approve by way
of a written consent in lieu of a special meeting of stockholders: (i) the
election of eight directors, and (ii) the approval of the AmeriSteel Employee
Stock Purchase/SAR Plan.
On August 18, 1999, stockholders holding approximately 99% of the outstanding
shares of common stock signed written consents approving the election of the
eight directors and approving the AmeriSteel Employee Stock Purchase/SAR Plan.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following documents are filed as exhibits to this Quarterly
Report on Form 10-Q:
Exhibit 10. $70,000,000 Credit Agreement dated as of October
20, 1999 among the Company, certain financial institutions, Bank
of America, N.A. as Administrative Agent, and SunTrust Bank,
Tampa Bay as Syndication Agent.
Exhibit 27 Financial Data Schedule (for SEC use only)
(b) Reports on Form 8-K:
The Company filed a current report on Form 8-K dated September
27, 1999 to report Changes in Control of the Company.
<PAGE>
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.
AMERISTEEL CORPORATION
Date: November 5, 1999 /s/ Phillip E. Casey
-----------------------------------------------
Phillip E. Casey, President and Chief Executive
Officer
Date: November 5, 1999 /s/ Tom J. Landa
-----------------------------------------------
Tom J. Landa, Vice President, Chief Financial
Officer, Secretary and Treasurer (Principal
Financial Officer and Principal Accounting
Officer); Director
<PAGE>
EXHIBIT 10
================================================================================
364 DAY
CREDIT AGREEMENT
by and among
AMERISTEEL CORPORATION
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender,
SUNTRUST BANK, TAMPA BAY,
as Syndication Agent
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
October 20, 1999
==============================================================================
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Manager and Sole Lead Arranger,
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
<S> <C>
1.1. Definitions........................................................... 2
1.2. Rules of Interpretation............................................... 24
ARTICLE II
The 364 Day Facility
2.1. 364 Day Loans......................................................... 26
2.2. Payment of Interest................................................... 27
2.3. Payment of Principal.................................................. 28
2.4. Manner of Payment..................................................... 29
2.5. 364 Day Notes......................................................... 29
2.6. Pro Rata Payments..................................................... 29
2.7. Reductions............................................................ 30
2.8. Conversions and Elections of Subsequent Interest Periods.............. 30
2.9. Increase and Decrease in Amounts...................................... 31
2.10. Unused Fee............................................................ 31
2.11. Deficiency Advances................................................... 31
2.12. Intraday Funding...................................................... 31
2.13. Use of Proceeds....................................................... 32
ARTICLE III
Security
3.1. Security Event........................................................ 33
3.2. Guaranty.............................................................. 33
3.3. Further Assurances.................................................... 33
3.4. Information Regarding Collateral...................................... 33
</TABLE>
<PAGE>
ARTICLE IV
Change in Circumstances
<TABLE>
<S> <C>
4.1. Increased Cost and Reduced Return..................................... 35
4.2. Limitation on Types of Loans.......................................... 36
4.3. Illegality............................................................ 37
4.4. Treatment of Affected Loans........................................... 37
4.5. Compensation.......................................................... 37
4.6. Taxes................................................................. 38
ARTICLE V
Conditions to Making Loans
5.1. Conditions of Initial Advance......................................... 40
5.2. Conditions of 364 Day Loans........................................... 42
ARTICLE VI
Representations and Warranties
6.1. Organization and Authority............................................ 44
6.2. Loan Documents........................................................ 44
6.3. Solvency.............................................................. 45
6.4. Subsidiaries and Stockholders......................................... 45
6.5. Ownership Interests................................................... 45
6.6. Financial Condition................................................... 45
6.7. Title to Properties................................................... 46
6.8. Taxes................................................................. 46
6.9. Other Agreements...................................................... 46
6.10. Litigation............................................................ 46
6.11. Margin Stock.......................................................... 47
6.12. Investment Company.................................................... 47
6.13. Patents, Etc.......................................................... 47
6.14. No Untrue Statement................................................... 47
6.15. No Consents, Etc...................................................... 47
6.16. Employee Benefit Plans................................................ 48
6.17. No Default............................................................ 49
6.18. Environmental Laws.................................................... 49
6.19. Employment Matters.................................................... 49
6.20. RICO.................................................................. 50
</TABLE>
ii
<PAGE>
ARTICLE VII
Affirmative Covenants
<TABLE>
<S> <C>
7.1. Financial Reports, Etc................................................ 51
7.2. Maintain Properties................................................... 52
7.3. Existence, Qualification, Etc......................................... 53
7.4. Regulations and Taxes................................................. 53
7.5. Insurance............................................................. 53
7.6. True Books............................................................ 53
7.7. Right of Inspection................................................... 53
7.8. Observe all Laws...................................................... 54
7.9. Governmental Licenses................................................. 54
7.10. Covenants Extending to Other Persons.................................. 54
7.11. Officer's Knowledge of Default........................................ 54
7.12. Suits or Other Proceedings............................................ 54
7.13. Notice of Environmental Complaint or Condition........................ 54
7.14. Environmental Compliance.............................................. 54
7.15. Indemnification....................................................... 55
7.16. Further Assurances.................................................... 55
7.17. Employee Benefit Plans................................................ 55
7.18. Continued Operations.................................................. 56
7.19. New Subsidiaries...................................................... 56
ARTICLE VIII
Negative Covenants
8.1. Financial Covenants................................................... 58
8.2. Acquisitions.......................................................... 58
8.3. Capital Expenditures.................................................. 58
8.4. Liens................................................................. 59
8.5. Indebtedness.......................................................... 60
8.6. Transfer of Assets.................................................... 61
8.7. Investments........................................................... 61
8.8. Merger or Consolidation............................................... 62
8.9. Restricted Payments................................................... 62
8.10. Transactions with Affiliates.......................................... 63
8.11. Compliance with ERISA................................................. 63
8.12. Fiscal Year........................................................... 64
8.13. Dissolution, etc...................................................... 64
8.14. Limitations on Sales and Leasebacks................................... 64
8.15. Change in Control..................................................... 65
8.16. Rate Hedging Obligations.............................................. 65
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
8.17. Negative Pledge Clauses............................................... 65
8.18. Prepayments, Etc. of Indebtedness..................................... 65
8.19. Mortgage Property..................................................... 65
ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default..................................................... 66
9.2. Administrative Agent to Act........................................... 69
9.3. Cumulative Rights..................................................... 69
9.4. No Waiver............................................................. 69
9.5. Allocation of Proceeds................................................ 69
ARTICLE X
The Administrative Agent
10.1. Appointment, Powers, and Immunities................................... 70
10.2. Reliance by Administrative Agent...................................... 70
10.3. Defaults.............................................................. 71
10.4. Rights as Lender...................................................... 71
10.5. Indemnification....................................................... 71
10.6. Non-Reliance on Administrative Agent and Other Lenders................ 72
10.7. Resignation of Administrative Agent................................... 72
10.8. Fees.................................................................. 73
ARTICLE XI
Miscellaneous
11.1. Assignments and Participations........................................ 74
11.2. Notices............................................................... 75
11.3. Right of Set-off; Adjustments......................................... 76
11.4. Survival.............................................................. 77
11.5. Expenses.............................................................. 77
11.6. Amendments and Waivers................................................ 78
11.7. Counterparts; Facsimile Signatures.................................... 78
11.8. Termination........................................................... 78
11.9. Indemnification; Limitation of Liability.............................. 79
11.10. Severability.......................................................... 80
11.11. Entire Agreement...................................................... 80
11.12. Agreement Controls.................................................... 80
11.13. Usury Savings Clause.................................................. 80
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
11.14. Payments.............................................................. 81
11.15. Governing Law; Waiver of Jury Trial................................... 81
EXHIBIT A Applicable Commitment Percentages............................ A-1
EXHIBIT B Form of Assignment and Acceptance............................ B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative............................................... C-1
EXHIBIT D Form of Borrowing Notice..................................... D-1
EXHIBIT E Form of Interest Rate Selection Notice....................... E-1
EXHIBIT F Form of 364 Day Note......................................... F-1
EXHIBIT G Form of Opinion of Borrower's Counsel........................ G-1
EXHIBIT H Compliance Certificate....................................... H-1
EXHIBIT I Form of Facility Guaranty.................................... I-1
Schedule 3.4 Information Regarding Collateral............................. S-1
Schedule 6.4 Subsidiaries and Investments in Other Persons................ S-2
Schedule 6.6 Indebtedness................................................. S-3
Schedule 6.7 Liens........................................................ S-4
Schedule 6.8 Tax Matters.................................................. S-5
Schedule 6.10 Litigation................................................... S-6
Schedule 6.18 Environmental................................................ S-7
Schedule 7.5 Insurance.................................................... S-8
</TABLE>
v
<PAGE>
364 DAY CREDIT AGREEMENT
THIS 364 DAY CREDIT AGREEMENT, dated as of October 20, 1999 (the
"Agreement"), is made by and among AMERISTEEL CORPORATION, a Florida corporation
having its principal place of business in Tampa, Florida (the "Borrower"), BANK
OF AMERICA, N.A., a national banking association organized and existing under
the laws of the United States, in its capacity as a Lender ("Bank of America"),
and each other financial institution executing and delivering a signature page
hereto and each other financial institution which may hereafter execute and
deliver an instrument of assignment with respect to this Agreement pursuant to
Section 11.1 (hereinafter such financial institutions may be referred to
- ------------
individually as a "Lender" or collectively as the "Lenders"), and BANK OF
AMERICA, as administrative agent for the Lenders (in such capacity, and together
with any successor administrative agent appointed in accordance with the terms
of Section 10.7, the "Administrative Agent").
------------
W I T N E S S E T H:
-------------------
WHEREAS, substantially all of the capital stock of the Borrower has been
acquired by Gerdau S.A. through an affiliate by the acquisition of a
substantial portion of the capital stock of FLS (as defined below) of which the
Borrower is a subsidiary; and
WHEREAS, as a result of such change of ownership the holders of the
Borrower's 8 3/4% Senior Notes due 2008 (the "Senior Notes") are entitled to
require that the Borrower repurchase the Senior Notes and the Borrower has
requested that the Lenders make a loan of $70,000,000 to the Borrower, the
proceeds of which loan will be used to repurchase Senior Notes and the Lenders
are willing to make the loan to the Borrower on the terms and the conditions set
forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Administrative Agent
hereby agree as follows:
1
<PAGE>
ARTICLE I
Definitions and Terms
---------------------
1.1 Definitions. For the purposes of this Agreement, in addition to the
-----------
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling equity
interest in another Person (including the purchase of an option, warrant or
convertible or similar type security to acquire such a controlling interest
at the time it becomes exercisable by the holder thereof), whether by
purchase of such equity interest or upon exercise of an option or warrant
for, or conversion of securities into, such equity interest, or (ii) assets
of another Person which constitute all or any material part of the assets
of such Person or of a line or lines of business conducted by such Person.
Neither the merger of FLS into the Borrower nor the acquisition of
receivables from AFI shall be deemed an Acquisition.
"Acquisition Transaction" means the purchase by Gerdau S.A. or its
affiliates from Kyoei Steel Ltd. or its affiliates of approximately 88% of
the capital stock of FLS as a result of which Gerdau S.A. will indirectly
own approximately 75% of the Class A common stock of Borrower.
"Advance" means a borrowing under the 364 Day Facility consisting of a
Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under
common control with the Borrower; or (ii) which beneficially owns or holds
5% or more of any class of the outstanding voting stock (or in the case of
a Person which is not a corporation, 10% or more of the equity interest) of
the Borrower; or 5% or more of any class of the outstanding voting stock
(or in the case of a Person which is not a corporation, 10% or more of the
equity interest) of which is beneficially owned or held by the Borrower.
The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting stock, by contract or
otherwise.
"AFI" means AmeriSteel Finance, Inc., a Delaware corporation, a
Subsidiary of the Borrower.
"AFI Guaranty" means the Guaranty dated the date hereof executed by
AFI in favor of the Lenders, as amended, modified or supplemented from time
to time.
"Applicable Commitment Percentage" means, with respect to each Lender
at any time, a fraction, the numerator of which shall be such Lenders 364
Day Commitment and
2
<PAGE>
the denominator of which shall be the Total 364 Day Credit Commitment,
which Applicable Commitment Percentage for each Lender as of the Closing
Date is as set forth in Exhibit A; provided that the Applicable Commitment
--------- --------
Percentage of each Lender shall be increased or decreased to reflect any
assignments to or by such Lender effected in accordance with Section 11.1.
-------------
"Applicable Lending Office" means, for each Lender and for each Type
of Loan, the Lending Office of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or
such other office of such Lender (or an affiliate of such Lender) as such
Lender may from time to time specify to the Administrative Agent and the
Borrower by written notice in accordance with the terms hereof as the
office by which its Loans of such Type are to be made and maintained.
"Applicable Margin" means that percent per annum set forth below,
which shall be based upon the Consolidated Leverage Ratio for the Four-
Quarter Period most recently ended as specified below:
<TABLE>
<CAPTION>
Applicable
Margin
-----------------------------
Consolidated Leverage Base Eurodollar
Ratio Rate Rate
--------- ----- ----------
<S> <C> <C> <C>
(a) Greater than 3.5 to 1.0 1.250% 2.250%
(b) Equal to or less than 3.5 to 1.0
and greater than 3.0 to 1.0 1.000% 2.000%
(c) Equal to or less than 3.0 to 1.0
and greater than 2.5 to 1.0 0.750% 1.750%
(d) Equal to or less than 2.5 to 1.0
and greater than 2.0 to 1.0 0.500% 1.500%
(e) Equal to or less than 2.0 to 1.0
and greater than 1.5 to 1.0 0.375% 1.375%
(f) Equal to or less than 1.5 to 1.0 0.250% 1.250%
</TABLE>
The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in the
Applicable Margin following each Determination Date shall be determined
based upon the computations set forth in the certificate furnished to the
Administrative Agent pursuant to Section 7.1(a)(ii)
------------------
3
<PAGE>
and Section 7.1(b)(ii), subject to review and approval of such computations
------------------
by the Administrative Agent, and shall be effective commencing on the first
Business Day following the date such certificate is received until the
first Business Day following the date on which a new certificate is
delivered or is required to be delivered, whichever shall first occur;
provided however, if the Borrower shall fail to deliver any such
-------- -------
certificate within the time period required by Section 7.1, then the
-----------
Applicable Margin shall be 1.250% for Base Rate Loans and 2.250% for
Eurodollar Rate Loans from the date such certificate was due until the
appropriate certificate is so delivered. Notwithstanding the foregoing,
from the Closing Date through and including the day following the date of
delivery of the certificate delivered pursuant to Section 7.1(b)(ii) for
------------------
the period ending December 31, 1999, the Applicable Margin shall be 0.50%
for Base Rate Loans and 1.50% for Eurodollar Rate Loans.
"Applicable Unused Fee" means that percent per annum set forth below,
which shall be based upon the Consolidated Leverage Ratio for the Four-
Quarter Period most recently ended as specified below:
<TABLE>
<CAPTION>
Applicable
Consolidated Leverage Ratio Unused Fee
-----------
<S> <C> <C>
(a) Greater than 3.5 to 1.0 .500%
(b) Equal to or less than 3.5 to 1.0
and greater than 3.0 to 1.0 .500%
(c) Equal to or less than 3.0 to 1.0
and greater than 2.5 to 1.0 .375%
(d) Equal to or less than 2.5 to 1.0
and greater than 2.0 to 1.0 .375%
(e) Equal to or less than 2.0 to 1.0
and greater than 1.5 to 1.0 .250%
(f) Equal to or less than 1.5 to 1.0 .250%
</TABLE>
The Applicable Unused Fee shall be established at each Determination Date.
Any change in the Applicable Unused Fee following each Determination Date
shall be determined based upon the computations set forth in the
certificate furnished to the Administrative Agent pursuant to Section
-------
7.1(a)(ii) and Section 7.1(b)(ii), subject to review and approval of such
---------- ------------------
computations by the Administrative Agent and shall be effective commencing
on the first Business Day following the date such certificate is received
until the first Business
4
<PAGE>
Day following the date on which a new certificate is delivered or is
required to be delivered, whichever shall first occur; provided however, if
-------- -------
the Borrower shall fail to deliver any such certificate within the time
period required by Section 7.1, then the Applicable Unused Fee shall be
-----------
.500% from the date such certificate was due until the appropriate
certificate is so delivered. Notwithstanding the foregoing, from the
Closing Date through and including the day following the date of delivery
of the certificate delivered pursuant to Section 7.1(b)(ii) for the period
------------------
ending December 31, 1999, the Applicable Unused Fee shall be 0.375%.
"Asset Disposition" means any voluntary disposition, whether by sale,
lease or transfer (other than as permitted under Section 8.6 hereof), with
-----------
the consent of the Required Lenders, of (a) any of the assets, excluding
cash and cash equivalents, of the Borrower or its Subsidiaries where the
Net Proceeds of such disposition exceed $50,000, and (b) any of the capital
stock, or securities or investments exchangeable, exercisable or
convertible for or into, or otherwise entitling the holder to receive any
of the capital stock, of any Subsidiary (other than a disposition to a
Guarantor).
"Assignment and Acceptance" shall mean an Assignment and Acceptance in
the form of Exhibit B (with blanks appropriately filled in) delivered to
---------
the Administrative Agent in connection with an assignment of a Lenders
interest under this Agreement pursuant to Section 11.1.
------------
"Authorized Representative" means any of the Chief Executive Officer,
the President or any Vice President of the Borrower or, with respect to
financial matters, the Chief Financial Officer or Assistant Treasurer of
the Borrower, or any other Person expressly designated by the Board of
Directors of the Borrower (or the appropriate committee thereof) as an
Authorized Representative of the Borrower, as set forth from time to time
in a certificate in the form of Exhibit C.
---------
"BAS" means Banc of America Securities LLC.
"Bank of America" means Bank of America, N.A.
"Base Rate" means, for any day, the rate per annum equal to the sum of
(a) the higher of (i) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (ii) the Prime Rate for such day plus (b) the
Applicable Margin. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Base Rate.
"Board" means the Board of Governors of the Federal Reserve System (or
any successor body).
5
<PAGE>
"Board of Directors" means either the board of directors of the
Borrower or any duly authorized committee of that board.
"Borrowers Account" means a demand deposit account number 3750656390
or any successor account with the Administrative Agent, which may be
maintained at one or more offices of the Administrative Agent or an agent
of the Administrative Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the 364 Day Facility in
the form of Exhibit D.
---------
"Business Day" means, (i) with respect to any Base Rate Loan, any day
which is not a Saturday, Sunday or a day on which banks in the States of
New York and North Carolina are authorized or obligated by law, executive
order or governmental decree to be closed and, (ii) with respect to any
Eurodollar Rate Loan, any day which is a Business Day, as described above,
and on which the relevant international financial markets are open for the
transaction of business contemplated by this Agreement in London, England,
New York, New York and Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and its
Subsidiaries, for any period the sum of (without duplication) (i) all
---
expenditures (whether paid in cash or accrued as liabilities) by the
Borrower or any Subsidiary during such period for items that would be
classified as "property, plant or equipment" or comparable items on the
consolidated balance sheet of the Borrower and its Subsidiaries, including
without limitation all transactional costs incurred in connection with such
expenditures provided the same have been capitalized, excluding, however,
the amount of any Capital Expenditures paid for with proceeds of casualty
insurance as evidenced in writing and submitted to the Administrative Agent
together with any compliance certificate delivered pursuant to Section
-------
7.1(a) or (b), and (ii) with respect to any Capital Lease entered into by
------ --- ---
the Borrower or its Subsidiaries during such period, the present value of
the lease payments due under such Capital Lease over the term of such
Capital Lease applying a discount rate equal to the interest rate provided
in such lease (or in the absence of a stated interest rate, that rate used
in the preparation of the financial statements described in
Section 7.1(a)), all the foregoing in accordance with GAAP applied on a
--------------
Consistent Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board and
any successor thereof.
"Capital Stock" of any Person means any and all shares, interests,
partnership interests, participations, rights in or other equivalents
(however designated) of such Person's equity interest (however designated),
whether now outstanding or issued after the Closing Date.
"Change of Control" means, at any time:
6
<PAGE>
(i) any "person" or "group" (each as used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act) other than Kyoei Steel Ltd. or
Gerdau S.A. or one or more affiliates becomes the "beneficial owner"
(as defined in Rule 13d-3 of the Exchange Act ), directly or
indirectly, of more than 35% of the voting power of all classes of
Voting Stock of the Borrower;
(ii) the Borrower, either individually or in conjunction with
one or more of its Subsidiaries, sells, assigns, conveys, transfers,
leases or otherwise disposes of, all or substantially all of the
properties of the Borrower and its Subsidiaries, taken as a whole
(either in one transaction or a series of related transactions),
including Capital Stock of such Subsidiaries, to any Person (other
than the Borrower or a Subsidiary);
(iii) during any consecutive two-year period, individuals who
at the beginning of such period constituted the Board of Directors of
the Borrower (together with any new directors whose election by such
Board of Directors or whose nomination for election by the
stockholders of the Borrower was approved by a vote of a majority of
the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously approved) cease for any reason, other than by reason of
the Acquisition Transaction to constitute a majority of the Board of
Directors of the Borrower then in office; or
(iv) the Borrower is liquidated or dissolved or adopts a plan
of liquidation or dissolution, other than in a transaction that
complies with Article Eight of the Indenture.
"Closing Date" means the date as of which this Agreement is executed
by the Borrower, the Lenders and the Administrative Agent and on which the
conditions set forth in Section 5.1 have been satisfied.
-----------
"Code" means the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.
"Collateral" means, collectively, all property of the Borrower, any
Subsidiary or any other Person in which the Administrative Agent or any
Lender is granted a Lien as security for all or any portion of the
Obligations under any Security Instrument.
"Consistent Basis" in reference to the application of GAAP means the
accounting principles observed in the period referred to are comparable in
all material respects to those applied in the preparation of the audited
financial statements of the Borrower referred to in Section 6.6(a).
--------------
7
<PAGE>
"Consolidated EBITDA" means, with respect to the Borrower and its
Subsidiaries for any Four-Quarter Period ending on the date of computation
thereof, the sum of, without duplication, (i) Consolidated Net Income, (ii)
---
Consolidated Interest Expense, (iii) taxes on income, (iv) amortization,
(v) depreciation, and (vi) any other non-cash charges, net of non-cash
credits, for such period, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Indebtedness" means the sum of (without duplication) all
Indebtedness for Money Borrowed of the Borrower and its Subsidiaries, all
determined on a consolidated basis.
"Consolidated Interest Coverage Ratio" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the ratio of (i) Consolidated EBITDA for such
period, to (ii) the cash portion of Consolidated Interest Expense for such
period.
"Consolidated Interest Expense" means, with respect to any period of
computation thereof, the gross interest expense of the Borrower and its
Subsidiaries, including without limitation (i) the current amortized
portion of debt discounts to the extent included in gross interest expense,
(ii) the current amortized portion of all fees (including fees payable in
respect of any Rate Hedging Obligation) payable in connection with the
incurrence of Indebtedness to the extent included in gross interest expense
and (iii) the portion of any payments made in connection with Capital
Leases allocable to interest expense, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of computation
thereof, the ratio of (i) Consolidated Indebtedness less cash and cash
equivalents in excess of $10,000,000, as determined in accordance with GAAP
(in each case, determined as at such date) to (ii) Consolidated EBITDA (for
the Four-Quarter Period ending on (or most recently ended prior to) such
date).
"Consolidated Net Income" means, with respect to the Borrower and its
Subsidiaries for any period, the net income (or net loss) for such period
as determined on a consolidated basis in accordance with GAAP, adjusted to
the extent included in calculating such net income or loss by excluding (i)
any net after-tax extraordinary gains or losses (less all fees and expenses
relating thereto), (ii) any net after-tax gains or losses (less all fees
and expenses relating thereto) attributable to asset dispositions other
than (x) in the ordinary course of business, and (y) as permitted in
Section 8.6(b) hereof, (iii) the portion of any net income (or loss) of any
--------------
Person that is not a Subsidiary, in which the Borrower has an ownership
interest, or that is accounted for by the equity method of accounting,
except to the extent of the amount of dividends or distributions actually
paid to the Borrower in cash, and (iv) the net income or loss of any Person
combined with the
8
<PAGE>
Borrower on a "pooling of interests" basis attributable to any period prior
to the date of computation.
"Consolidated Net Worth" means, as of any date on which the amount
thereof is to be determined, Consolidated Shareholders Equity, as
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Shareholders Equity" means, as of any date on which the
amount thereof is to be determined, the sum of the following in respect of
the Borrower and its Subsidiaries (determined on a consolidated basis and
excluding any upward adjustment after the Closing Date due to revaluation
of assets): (i) the amount of issued and outstanding share capital, plus
(ii) the amount of additional paid-in capital and retained earnings (or, in
the case of a deficit, minus the amount of such deficit), plus (iii) the
amount of any foreign currency translation adjustment (if positive, or, if
negative, minus the amount of such translation adjustment), minus (iv) the
amount of any treasury stock, all as determined in accordance with GAAP
applied on a Consistent Basis.
"Consolidated Tangible Assets" means, at any date of determination,
the total assets, less goodwill and other intangibles (other than patents,
trademarks, copyrights, licenses and other intellectual property), shown on
the consolidated balance sheet of the Borrower and its Subsidiaries as of
the most recent date for which such a balance sheet is available,
determined on a consolidated basis in accordance with GAAP less all write-
ups (other than write-ups in connection with Acquisitions) subsequent to
the Closing Date in the book value of any asset (except any such intangible
assets ) owned by the Borrower or any of its Subsidiaries.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.8 hereof of a Eurodollar Rate Loan of
-----------
one Type as a Eurodollar Rate Loan of the same Type from one Interest
Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Sections 2.8 of one Type of Loan into another Type of Loan.
------------
"Cost of Acquisition" means, with respect to any Acquisition, as at
the date of entering into any agreement therefor, the sum of the following
---
(without duplication): (i) the value of the capital stock, warrants or
options to acquire capital stock of Borrower or any Subsidiary to be
transferred in connection therewith, (ii) the amount of any cash and fair
market value of other property (excluding property described in clause (i)
and the unpaid principal amount of any debt instrument) given as
consideration, (iii) the amount (determined by using the face amount or the
amount payable at maturity, whichever is greater) of any Indebtedness
incurred, assumed or acquired by the Borrower or any Subsidiary in
connection with such Acquisition, (iv) all additional purchase price
amounts in the form of earnouts and other contingent obligations that
should be recorded on the financial statements of the Borrower and its
Subsidiaries in accordance with GAAP, (v)
9
<PAGE>
all amounts paid in respect of covenants not to compete, consulting
agreements that should be recorded on financial statements of the Borrower
and its Subsidiaries in accordance with GAAP, and other affiliated
contracts in connection with such Acquisition, (vi) the aggregate fair
market value of all other consideration given by the Borrower or any
Subsidiary in connection with such Acquisition, and (vii) out of pocket
transaction costs for the services and expenses of attorneys, accountants
and other consultants incurred in effecting such transaction, and other
similar transaction costs so incurred. For purposes of determining the Cost
of Acquisition for any transaction, (A) the capital stock of the Borrower
shall be valued (I) in the case of capital stock that is then designated as
a national market system security by the National Association of Securities
Dealers, Inc. ("NASDAQ") or is listed on a national securities exchange,
the average of the last reported bid and ask quotations or the last prices
reported thereon, and (II) with respect to shares that are not freely
tradeable, as determined by a committee composed of the disinterested
members of the Board of Directors of the Borrower and, if requested by the
Administrative Agent, determined to be a reasonable valuation by the
independent public accountants referred to in Section 7.1(a), (B) the
--------------
capital stock of any Subsidiary shall be valued as determined by a
committee composed of the disinterested members of the Board of Directors
of such Subsidiary and, if requested by the Administrative Agent,
determined to be a reasonable valuation by the independent public
accountants referred to in Section 7.1(a), and (C) with respect to any
--------------
Acquisition accomplished pursuant to the exercise of options or warrants or
the conversion of securities, the Cost of Acquisition shall include both
the cost of acquiring such option, warrant or convertible security as well
as the cost of exercise or conversion.
"Credit Party" means, collectively, the Borrower, each Guarantor and
each other Person providing Collateral pursuant to any Security Instrument.
"Debt Offering" means the incurrence of any Indebtedness for Money
Borrowed if permitted hereunder by the Required Lenders in connection with
a public offering or private placement of debt securities of the Borrower
or any Subsidiary or otherwise, except to the extent permitted under
Section 8.5.
-----------
"Default" means any event or condition which, with the giving or
receipt of notice or lapse of time or both, would constitute an Event of
Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate Loan,
until the end of the Interest Period applicable thereto, a rate of two
percent (2%) above the Eurodollar Rate applicable to such Loan, and
thereafter at a rate of interest per annum which shall be two percent (2%)
above the Base Rate, (ii) with respect to Base Rate Loans, at a rate of
interest per annum which shall be two percent (2%) above the Base Rate and
(iii) in any case, the maximum rate permitted by applicable law, if lower.
"Dollars" and the symbol "$" means dollars constituting legal tender
for the payment of public and private debts in the United States of
America.
10
<PAGE>
"Domestic Subsidiary" means a Subsidiary which is organized under the
laws of one of the states or territories comprising the United States of
America.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Administrative Agent
and, unless an Event of Default has occurred and is continuing at the time
any assignment is effected in accordance with Section 11.1, the Borrower,
------------
such approval not to be unreasonably withheld or delayed by the Borrower or
the Administrative Agent and such approval to be deemed given by the
Borrower within five Business Days after notice of such proposed assignment
has been provided by the assigning Lender to the Borrower if the Borrower
has not otherwise responded; provided, however, that neither the Borrower
-------- -------
nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any other
obligations previously approved in writing by the Administrative Agent:
(a) Government Securities;
(b) obligations of any corporation organized under the laws of
any state of the United States of America or under the laws of any
other nation, payable in the United States of America, expressed to
mature not later than 180 days following the date of issuance thereof
and rated in an investment grade rating category by S&P and Moody's;
(c) interest bearing demand or time deposits issued by any
Lender or certificates of deposit maturing within one year from the
date of issuance thereof and issued by a bank or trust company
organized under the laws of the United States or of any state thereof
having capital surplus and undivided profits aggregating at least
$400,000,000 and being rated "A-" or better by S&P or "A-3" or better
by Moody's;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in obligations described
in paragraphs (a) through (f) above, the shares of which mutual funds
are at all times rated "AAA" by S&P;
(h) tax-exempt or taxable adjustable rate preferred stock issued
by a Person having a rating of its long term unsecured debt of "A-" or
better by S&P or "A-2" or better by Moodys; and
11
<PAGE>
(i) asset-backed remarketed certificates of participation
representing a fractional undivided interest in the assets of a trust,
which certificates are rated at least "A-1" by S&P and "P-1" by
Moody's.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (i) is maintained for employees of
the Borrower or any of its ERISA Affiliates or is assumed by the Borrower
or any of its ERISA Affiliates in connection with any Acquisition or (ii)
has at any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Environmental Laws" means any federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license
regulating, relating to, or imposing liability or standards of conduct
concerning, any environmental matters or conditions, environmental
protection or conservation, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended;
the Superfund Amendments and Reauthorization Act of 1986, as amended; the
Resource Conservation and Recovery Act, as amended; the Toxic Substances
Control Act, as amended; the Clean Air Act, as amended; the Clean Water
Act, as amended; together with all regulations promulgated thereunder, and
any other "Superfund" or "Superlien" law.
"Equity Offering" means a public or private offering of equity
securities (including, without limitation, any security or investment
exchangeable, exercisable or convertible for or into, or otherwise
entitling the holder to receive, equity securities) of the Borrower or any
Subsidiary.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute and all rules and
regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any Person or
trade or business which is a member of a group which is under common
control with the Borrower, who together with the Borrower, is treated as a
single employer within the meaning of Section 414(b) and (c) of the Code.
"Eurodollar Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
---------------------------
Rate 1- Reserve Requirement Margin
12
<PAGE>
"Event of Default" means any of the occurrences set forth as such in
Section 9.1.
-----------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the regulations promulgated thereunder.
"Existing Credit Agreement" means the Amended and Restated Credit
Agreement dated July 14, 1998 among the Borrower, Bank of America, N.A.,
successor by merger of NationsBank, National Association, as Administrative
Agent, The Bank of Tokyo-Mitsubishi, Ltd., as Collateral Agent and
Documentation Agent, First Union National Bank, as Co-Agent and the Lenders
party thereto.
"FASB 133 Adjustments" means entries on or adjustments to any balance
sheet or statement of income in respect of derivatives or hedging
instruments as required or permitted by Statement of Financial Accounting
Standards No. 133.
"Facility Guaranty" means the AFI Guaranty and each Guaranty Agreement
between one or more Guarantors and the Administrative Agent for the benefit
of the Lenders, delivered as of the Closing Date and otherwise pursuant to
Section 7.19, as the same may be amended, modified or supplemented.
------------
"Facility Termination Date" means such date as all of the following
shall have occurred: (a) the Borrower shall have permanently terminated
the 364 Day Facility by permanent payment in full of all 364 Day
Outstandings, together with all accrued and unpaid interest thereon, (b)
all 364 Day Commitments shall have terminated or expired and (c) the
Borrower shall have fully, finally and irrevocably paid and satisfied in
full all Obligations (other than Obligations consisting of continuing
indemnities and other contingent Obligations of the Borrower or any
Guarantor that may be owing to the Lenders pursuant to the Loan Documents
and expressly survive termination of this Agreement);
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
--------
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate charged to the Administrative Agent (in its
individual capacity) on such day on such transactions as determined by the
Administrative Agent.
"Fiscal Year" means the twelve month fiscal period of the Borrower and
its Subsidiaries commencing on April 1 of each calendar year and ending on
March 31 of each calendar year.
13
<PAGE>
"FLS" means FLS Holdings Inc., a Delaware corporation.
"Foreign Benefit Law" means any applicable statute, law, ordinance,
code, rule, regulation, order or decree of any foreign nation or any
province, state, territory, protectorate or other political subdivision
thereof regulating, relating to, or imposing liability or standards of
conduct concerning, any Employee Benefit Plan.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
any jurisdiction other than one of the states comprising the United States
of America, any territory thereof or the District of Columbia.
"Four-Quarter Period" means a period of four full consecutive fiscal
quarters of the Borrower and its Subsidiaries, taken together as one
accounting period.
"GAAP" or "Generally Accepted Accounting Principles" means generally
accepted accounting principles, being those principles of accounting set
forth in pronouncements of the Financial Accounting Standards Board, the
American Institute of Certified Public Accountants or which have other
substantial authoritative support and are applicable in the circumstances
as of the date of a report.
"Government Securities" means direct obligations of, or obligations
the timely payment of principal and interest on which are fully and
unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state, municipal,
national or other governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any
entity or officer exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to any government or any
court, in each case whether associated with a state of the United States,
the United States, or a foreign entity or government.
"Guaranties" means, with respect to any Person any obligation (except
the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing any
Indebtedness of any other Person (the "Primary Obligor") in any manner,
whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person: (a)
to purchase such Indebtedness or any property or assets constituting
security therefor; (b) to advance or supply funds (i) for the purpose of
payment of such Indebtedness, or (ii) to maintain working capital or other
balance sheet condition or any income statement condition of the Primary
Obligor or otherwise to advance or make available funds for the purchase or
payment of such Indebtedness; (c) to lease property or to purchase
securities or other property or services primarily for the purpose of
assuring the owner of such Indebtedness of the ability of the Primary
Obligor to make payment of the Indebtedness; or (d) otherwise to assure the
owner of the Indebtedness of the Primary
14
<PAGE>
Obligor against loss in respect thereof. For purposes of computing the
amount of any Guaranty, in connection with any computation of Indebtedness,
it shall be assumed that the Indebtedness that is the subject of such
Guaranty is, to the extent guaranteed under such Guaranty, a direct
obligation of the issuer of such Guaranty.
"Guarantors" means, at any date, the Subsidiaries who are required to
be parties to a Facility Guaranty at such date.
"Hazardous Material" means and includes any pollutant, contaminant, or
hazardous, toxic or dangerous waste, substance or material (including
without limitation petroleum products, asbestos-containing materials and
lead), the generation, handling, storage, transportation, disposal,
treatment, release, discharge or emission of which is subject to any
Environmental Law.
"Indebtedness" means with respect to any Person, without duplication,
all Indebtedness for Money Borrowed, all indebtedness of such Person for
the acquisition of property or arising under Rate Hedging Obligations, all
indebtedness secured by any Lien on the property of such Person whether or
not such indebtedness is assumed, all liability of such Person by way of
endorsements (other than for collection or deposit in the ordinary course
of business), all Guaranties and other items which in accordance with GAAP
is required to be classified as a liability on a balance sheet; but
excluding all accounts payable in the ordinary course of business so long
as payment therefor is due within one year; provided that in no event shall
the term Indebtedness include surplus and retained earnings, lease
obligations (other than pursuant to Capital Leases), reserves for deferred
income taxes and investment credits, other deferred credits or reserves.
"Indebtedness for Money Borrowed" means with respect to any Person,
without duplication, all indebtedness in respect of money borrowed,
including without limitation letters of credit, all Capital Leases and the
deferred purchase price of any property or asset, evidenced by a promissory
note, bond, debenture or similar written obligation for the payment of
money (including conditional sales or similar title retention agreements),
other than trade payables incurred in the ordinary course of business.
"Indenture" means the Indenture dated as of April 3, 1998 by and among
the Borrower, as issuer, the subsidiary guarantors named therein and State
Street Bank and Trust Company, as Trustee, with regard to the issuance of
the Senior Notes.
"Interbank Offered Rate" means, with respect to any Eurodollar Rate
Loan for the Interest Period applicable thereto, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Interbank Offered Rate" shall mean, with respect to
any Eurodollar Rate Loan for the
15
<PAGE>
Interest Period applicable thereto, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen
-------- -------
LIBO Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Interest Period" means, for each Eurodollar Rate Loan, a period
commencing on the date such Eurodollar Rate Loan is made or Converted and
ending, at the Borrower's option, on the date one, two, three or six months
thereafter as notified to the Administrative Agent by the Authorized
Representative three (3) Business Days prior to the beginning of such
Interest Period; provided, that,
--------
(i) if the Authorized Representative fails to notify the
Administrative Agent of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest Period, the
Eurodollar Rate Loan for which such Interest Period was to be
determined shall be deemed to be a Base Rate Loan as of the first day
thereof;
(ii) if an Interest Period for a Eurodollar Rate Loan would
end on a day which is not a Business Day, such Interest Period shall
be extended to the next Business Day (unless such extension would
cause the applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end on the next
preceding Business Day);
(iii) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(iv) no Interest Period shall extend past the Stated
Termination Date; and
(v) there shall not be more than six (6) Interest Periods in
effect on any day.
"Interest Rate Selection Notice" means the written notice delivered by
an Authorized Representative in connection with the election of a
subsequent Interest Period for any Eurodollar Rate Loan or the Conversion
of any Eurodollar Rate Loan into a Base Rate Loan or the Conversion of any
Base Rate Loan into a Eurodollar Rate Loan, in the form of Exhibit E.
---------
"Lien" means any interest in property securing any obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the
16
<PAGE>
common law, statute or contract, and including but not limited to the lien
or security interest arising from a mortgage, encumbrance, pledge, security
agreement, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes. For the purposes of this Agreement, the
Borrower and any Subsidiary shall be deemed to be the owner of any property
which it has acquired or holds subject to a conditional sale agreement,
financing lease, or other arrangement pursuant to which title to the
property has been retained by or vested in some other Person for security
purposes.
"Loan" or "Loans" means any borrowing pursuant to an Advance under the
364 Day Facility.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties and all other instruments and
documents heretofore or hereafter executed or delivered to or in favor of
any Lender, the Administrative Agent, or either of them in connection with
the Loans made and transactions contemplated under this Agreement, as the
same may be amended, supplemented or replaced from the time to time.
"Loan Parties" means the Borrower and the Guarantor(s).
"Material Adverse Effect" means a material adverse effect on (i) the
business, properties, operations or condition, financial or otherwise, of
the Borrower or any of its Subsidiaries, taken as a whole, (ii) the ability
of any Credit Party to pay or perform its respective obligations,
liabilities and indebtedness under the Loan Documents as such payment or
performance becomes due in accordance with the terms thereof, or (iii) the
rights, powers and remedies of the Administrative Agent or any Lender under
any Loan Document or the validity, legality or enforceability thereof.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means, the Deed of Trust from the Borrower granting a Lien
to the Administrative Agent (or a trustee for the benefit of the
Administrative Agent) for the benefit of the Lenders in the Mortgage
Property, as amended, modified or supplemented from time to time.
"Mortgage Property" means the land, buildings, fixtures and
improvements constituting the mini-mill facility of Borrower located in
Charlotte, North Carolina, together with any additions and improvements
thereto.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making, or is accruing an obligation to make, contributions or has made, or
been obligated to make, contributions within the preceding six (6) Fiscal
Years.
17
<PAGE>
"Municipal Obligations" means general obligations issued by, and
supported by the full taxing authority of, any state of the United States
of America or of any municipal corporation or other public body organized
under the laws of any such state which are rated in the highest investment
rating category by both S&P and Moody's.
"Net Proceeds" (a) from any Equity Offering or Debt Offering means
cash payments received by the Borrower therefrom as and when received, net
of all legal, accounting, banking and underwriting fees and expenses,
commissions, discounts and other issuance expenses incurred in connection
therewith and all taxes required to be paid or accrued as a consequence of
such issuance and less any amount required to be used to repay Indebtedness
arising under the Existing Credit Agreement; and (b) from any Asset
Disposition means cash payments received by the Borrower therefrom
(including any cash payments received pursuant to any note or other debt
security received in connection with any Asset Disposition) as and when
received, net of (i) all legal fees and expenses and other fees and
expenses paid to third parties and incurred in connection therewith, (ii)
all taxes required to be paid or accrued as a consequence of such sale,
(iii) all amounts applied to repayment of Indebtedness (other than the
Obligations) secured by a Lien on the asset or property disposed, (iv) all
amounts applied to repayment of Indebtedness arising under the Existing
Credit Agreement, and (v) all amounts reinvested by the Borrower or a
Subsidiary substantially contemporaneously with such disposition (or to be
invested within 90 days) in replacement assets of substantially equal or
greater value and utility.
"Notes" means, collectively, the 364 Day Notes of the Borrower.
"Obligations" means the obligations, liabilities and Indebtedness of
the Borrower with respect to (i) the principal and interest on the Loans as
evidenced by the Notes and (ii) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the Lenders,
the Administrative Agent or BAS hereunder, under any one or more of the
other Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation, limited
liability company, partnership, limited partnership, limited liability
partnership or other legally authorized incorporated or unincorporated
entity, the bylaws, operating agreement, partnership agreement, limited
partnership agreement or other applicable documents relating to the
operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation, limited
liability company, partnership, limited partnership, limited liability
partnership or other legally authorized incorporated or unincorporated
entity, any corporate, organizational or partnership action (including any
required shareholder, member or partner action), or other similar official
action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other
18
<PAGE>
legally authorized incorporated or unincorporated entity, the articles of
incorporation, certificate of incorporation, articles of organization,
certificate of limited partnership or other applicable organizational or
charter documents relating to the creation of such entity.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within the
meaning of Section 3(2) of ERISA, other than a Multiemployer Plan, which is
subject to the provisions of Title IV of ERISA or Section 412 of the Code
and which (i) is maintained for employees of the Borrower or any of its
ERISA Affiliates or is assumed by the Borrower or any of its ERISA
Affiliates in connection with any Acquisition or (ii) has at any time been
maintained for the employees of the Borrower or any current or former ERISA
Affiliate.
"Person" means an individual, partnership, corporation, limited
liability company, limited liability partnership, trust, unincorporated
organization, association, joint venture or a government or agency or
political subdivision thereof.
"Pre-Refunded Municipal Obligations" means obligations of any state of
the United States of America or of any municipal corporation or other
public body organized under the laws of any such state which are rated,
based on the escrow, in the highest investment rating category by both S&P
and Moody's and which have been irrevocably called for redemption and
advance refunded through the deposit in escrow of Government Securities or
other debt securities which are (i) not callable at the option of the
issuer thereof prior to maturity, (ii) irrevocably pledged solely to the
payment of all principal and interest on such obligations as the same
becomes due and (iii) in a principal amount and bear such rate or rates of
interest as shall be sufficient to pay in full all principal of, interest,
and premium, if any, on such obligations as the same becomes due as
verified by a nationally recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established from
time to time by Bank of America as its prime rate, which rate may not be
the lowest rate of interest charged by Bank of America to its customers.
"Principal Office" means the principal office of Bank of America,
presently located at 901 Main Street, 67th Floor, Dallas, Texas 75202,
Attention: Agency Services, or such other office and address as the
Administrative Agent may from time to time designate.
"Rate Hedging Obligations" means any and all obligations of the
Borrower or any Subsidiary, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions therefor),
under (i) any and all agreements, devices or arrangements designed to
protect at least one of the parties thereto from the fluctuations
19
<PAGE>
of interest rates, exchange rates or forward rates applicable to such
party's assets, liabilities or exchange transactions, including, but not
limited to, Dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate
options, puts, warrants and those commonly known as interest rate "swap"
agreements; (ii) all other "derivative instruments" as defined in FASB 133
and which are subject to the reporting requirements of FASB 133; and (iii)
any and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing.
"Regulation D" means Regulation D of the Board as the same may be
amended or supplemented from time to time.
"Regulatory Change" means any change effective after the Closing Date
in United States federal or state laws or regulations (including Regulation
D and capital adequacy regulations) or foreign laws or regulations or the
adoption or making after such date of any interpretations, directives or
requests applying to a class of banks, which includes any of the Lenders,
under any United States federal or state or foreign laws or regulations
(whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration
thereof or compliance by any Lender with any request or directive regarding
capital adequacy, including those relating to "highly leveraged
transactions," whether or not having the force of law, and whether or not
failure to comply therewith would be unlawful and whether or not published
or proposed prior to the date hereof.
"Repurchase Agreement" means a repurchase agreement entered into with
any financial institution whose debt obligations or commercial paper are
rated "A" by either of S&P or Moody's or "A-1" by S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date having
Credit Exposures (as defined below) aggregating at least 51% of the
aggregate Credit Exposures of all the Lenders on such date. For purposes
of the preceding sentence, the amount of the Credit Exposure of each Lender
---------------
shall be equal at all times (a) other than following the occurrence and
during the continuance of an Event of Default, to its 364 Day Commitment,
and (b) following the occurrence and during the continuance of an Event of
Default, to the aggregate principal amount of such Lender's Applicable
Commitment Percentage of 364 Day Outstandings; provided that, for the
--------
purpose of this definition only, if any Lender shall have failed to fund
its Applicable Commitment Percentage of any Advance when required to fund
hereunder, the 364 Day Commitment of such Lender shall be deemed reduced by
the amount it so failed to fund for so long as such failure shall continue
and such Lender's Credit Exposure attributable to such failure shall be
deemed held by any Lender making more than its Applicable Commitment
Percentage of such Advance to the extent it covers such failure.
20
<PAGE>
"Reserve Requirement" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against Eurocurrency liabilities (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by
such member banks with respect to (i) any category of liabilities which
includes deposits by reference to which the Eurodollar Rate is to be
determined, or (ii) any category of extensions of credit or other assets
which include Eurodollar Rate Loans. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
"Restricted Payment" means (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of
Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding, except
a dividend payable solely in shares of a class of stock to the holders of
that class; (b) any redemption, conversion, exchange, retirement or similar
payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of Borrower or any of its Subsidiaries
(other than those payable or distributable solely to the Borrower) now or
hereafter outstanding; (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Borrower or any of its Subsidiaries now or
hereafter outstanding; and (d) any issuance and sale of capital stock of
any Subsidiary of the Borrower (or any option, warrant or right to acquire
such stock) other than to the Borrower.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-
Hill.
"Security Agreement" means the Security Agreement dated as of the date
of the occurrence of a Security Event, as hereafter modified, amended or
supplemented from time to time.
"Security Event" means the earlier to occur of (i) the occurrence of
either a Default or Event of Default, (ii) the occurrence of a default or
event of default under the Existing Credit Agreement and (iii) the date six
months from the date of the initial Advance hereunder.
"Security Instruments" means, collectively, the Security Agreement,
the Mortgage and all other agreements, instruments and other documents,
whether now existing or hereafter in effect, pursuant to which the Borrower
or any Subsidiary shall grant or convey to the Administrative Agent or the
Lenders a Lien in property as security for all or any portion of the
Obligations, as any of them may be amended, modified or supplemented from
time to time.
21
<PAGE>
"Senior Notes" has the meaning set forth in the preamble to this
Agreement.
"Single Employer Plan" means any employee pension benefit plan covered
by Title IV of ERISA in respect of which the Borrower or any Subsidiary is
an "employer" as described in Section 4001(b) of ERISA and which is not a
Multiemployer Plan.
"Solvent" means, when used with respect to any Person, that at the
time of determination:
(i) the fair value of its assets (both at fair valuation and at
present fair saleable value on an orderly basis) is in excess of the
total amount of its liabilities, including Guaranties; and
(ii) it is then able and expects to be able to pay its debts as
they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Stated Termination Date" means October 18, 2000.
"Subordinated Intercompany Note" means the subordinated note due
December 21, 2002 in the original principal amount of $50,000,000 issued by
the Borrower to FLS, with an outstanding principal balance as of the
Closing Date of $15,000,000.
Subsidiary" means any corporation or other entity in which more than
50% of its outstanding voting stock or more than 50% of all equity
interests is owned directly or indirectly by the Borrower and/or by one or
more of the Borrower's Subsidiaries.
"Swap Agreement" means one or more agreements between the Borrower and
any other Person, which agreements create Rate Hedging Obligations.
"Termination Event" means: (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (unless the
notice requirement has been waived by applicable regulation); or (ii) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or was deemed such under Section 4062(e) of
ERISA; or (iii) the termination of a Pension Plan, the filing of a notice
of intent to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041 of ERISA; or (iv) the
institution of proceedings to terminate a Pension Plan by the PBGC; or (v)
any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; or (vi) the partial or complete withdrawal of
the Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien
22
<PAGE>
pursuant to Section 412 of the Code or Section 302 of ERISA; or (viii) any
event or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA,
respectively; or (ix) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by the PBGC of proceedings to terminate a Multiemployer Plan
under Section 4042 of ERISA.
"364 Day Commitment" means, with respect to each Lender, the
obligation of such Lender to make 364 Day Loans to the Borrower up to an
aggregate principal amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total 364 Day Commitment.
"364 Day Facility" means the facility described in Article II hereof
----------
providing for Loans to the Borrower by the Lenders in the aggregate
principal amount of the Total 364 Day Commitment.
"364 Day Loan" means any borrowing pursuant to an Advance under the
364 Day Facility in accordance with Article II.
----------
"364 Day Notes" means, collectively, the promissory notes of the
Borrower evidencing 364 Day Loans executed and delivered to the Lenders as
provided in Section 2.5 substantially in the form of Exhibit F, with
----------- ---------
appropriate insertions as to amounts, dates and names of Lenders.
"364 Day Outstandings" means, as of any date of determination, the
aggregate principal amount of all 364 Day Loans then outstanding.
"364 Day Termination Date" means (i) the Stated Termination Date or
(ii) such earlier date of termination of Lenders' obligations pursuant to
Section 9.1 upon the occurrence of an Event of Default, or (iii) such
-----------
earlier date as the Borrower may voluntarily and permanently terminate the
364 Day Facility by payment in full of all 364 Day Outstandings, together
with all accrued and unpaid interest thereon.
"Total 364 Day Commitment" means a principal amount equal to
$70,000,000, as reduced from time to time in accordance with Section 2.3
-----------
and Section 2.7.
-----------
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or a
Eurodollar Rate Loan).
"Voting Stock" means shares of Capital Stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
23
<PAGE>
"Year 2000 Compliant" means all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to the Borrower's or any of its Subsidiaries' business and
operations will on a timely basis be able to perform properly data-
sensitive functions involving all dates on and after January 1, 2000.
"Year 2000 Problem" means the risk that computer applications used by
the Borrower and any of its Subsidiaries (including those affected by
information received from its suppliers and vendors) may be unable to
recognize and perform properly data-sensitive functions involving certain
dates on and after January 1, 2000.
1.2. Rules of Interpretation.
-----------------------
(a) All accounting terms not specifically defined herein shall have
the meanings assigned to such terms and shall be interpreted in accordance
with GAAP applied on a Consistent Basis.
(b) Each term defined in Article 1 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code of
another jurisdiction is controlling, in which case such terms shall have
the meaning given in the Uniform Commercial Code of the applicable
jurisdiction.
(c) The headings, subheadings and table of contents used herein or in
any other Loan Document are solely for convenience of reference and shall
not constitute a part of any such document or affect the meaning,
construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein to
articles, sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules are references to articles, sections, paragraphs, clauses,
annexes, appendices, exhibits and schedules in or to this Agreement.
(e) All definitions set forth herein or in any other Loan Document
shall apply to the singular as well as the plural form of such defined
term, and all references to the masculine gender shall include reference to
the feminine or neuter gender, and vice versa, as the context may require.
(f) When used herein or in any other Loan Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the
whole of the applicable document and not to any particular article,
section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting the
generality of any description preceding such term, and for purposes hereof
the rule of ejusdem
24
<PAGE>
generis shall not be applicable to limit a general statement, followed by
or referable to an enumeration of specific matters, to matters similar to
those specifically mentioned.
(h) All dates and times of day specified herein shall refer to such
dates and times at Charlotte, North Carolina.
(i) Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request)
revisions to, the Loan Documents, and any rule of construction that
ambiguities are to be resolved against the drafting party shall be
inapplicable in the construing and interpretation of the Loan Documents and
all exhibits, schedules and appendices thereto.
(j) Any reference to an officer of the Borrower or any other Person by
reference to the title of such officer shall be deemed to refer to each
other officer of such Person, however titled, exercising the same or
substantially similar functions.
(k) All references to any agreement or document as amended, modified
or supplemented, or words of similar effect, shall mean such document or
agreement, as the case may be, as amended, modified or supplemented from
time to time only as and to the extent permitted therein and in the Loan
Documents.
25
<PAGE>
ARTICLE II
The 364 Day Facility
--------------------
II.1. 364 Day Loans.
-------------
(a) Commitment. Subject to the terms and conditions of this
----------
Agreement, each Lender severally agrees to make Advances to the Borrower under
the 364 Day Facility from time to time from the Closing Date until the 364 Day
Termination Date on a pro rata basis as to the total borrowing requested by the
Borrower on any day determined by such Lender's Applicable Commitment Percentage
up to but not exceeding the 364 Day Commitment of such Lender, provided,
--------
however, that the Lenders will not be required and shall have no obligation to
make any such Advance (i) so long as a Default or an Event of Default has
occurred and is continuing or (ii) if the Administrative Agent has accelerated
the maturity of any of the Notes as a result of an Event of Default; provided
--------
further, however, that immediately after giving effect to each such Advance, the
amount of 364 Day Outstandings shall not exceed the Total 364 Day Commitment.
Within such limits and subject to Section 2.13, the Borrower may borrow, repay
------------
and reborrow under the 364 Day Facility on a Business Day from the Closing Date
until, but (as to borrowings and reborrowings) not including, the 364 Day
Termination Date; provided, however, that (y) no 364 Day Loan that is a
--------
Eurodollar Rate Loan shall be made which has an Interest Period that extends
beyond the Stated Termination Date and (z) each 364 Day Loan that is a
Eurodollar Rate Loan may, subject to the provisions of Section 2.7, be repaid
-----------
only on the last day of the Interest Period with respect thereto unless such
payment is accompanied by the additional payment, if any, required by Section
-------
4.5.
- ---
(b) Amounts. Except as otherwise permitted by all the Lenders from
-------
time to time, the amount of 364 Day Outstandings shall not exceed at any time
the Total 364 Day Commitment, and, in the event there shall be outstanding any
such excess, the Borrower shall immediately make such payments and prepayments
as shall be necessary to comply with this restriction. Each 364 Day Loan
hereunder and each Conversion under Section 2.8, shall be in an amount of at
-----------
least $1,000,000, and, if greater than $1,000,000, an integral multiple of
$500,000.
(c) Advances. (i) An Authorized Representative shall give the
--------
Administrative Agent (1) at least three (3) Business Days' irrevocable written
notice by telefacsimile transmission of a Borrowing Notice or Interest Rate
Selection Notice (as applicable) with appropriate insertions, effective upon
receipt, of each 364 Day Loan that is a Eurodollar Rate Loan (whether
representing an additional borrowing hereunder or the Conversion of a borrowing
hereunder from Base Rate Loans to Eurodollar Rate Loans) prior to 1:00 P.M. and
(2) irrevocable written notice by telefacsimile transmission of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions, effective upon receipt, of each 364 Day Loan that is a Base Rate
Loan (whether representing an additional borrowing hereunder or the Conversion
of borrowing hereunder from Eurodollar Rate Loans to Base Rate Loans) prior to
11:00 A.M. on
26
<PAGE>
the day of such proposed 364 Day Loan. Each such notice shall specify the amount
of the borrowing, the Type of 364 Day Loan (Base Rate or Eurodollar Rate), the
date of borrowing and, if a Eurodollar Rate Loan, the Interest Period to be used
in the computation of interest. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, together with the amount of
each Lender's portion of an Advance requested thereunder, shall be provided by
the Administrative Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Administrative Agent shall have
received such notice by 1:00 P.M. in the case of a Eurodollar Rate Loan and
11:00 A.M. in the case of a Base Rate Loan) not later than 3:00 P.M. in the case
of a Eurodollar Rate Loan and not later than 1:00 P.M. in the case of a Base
Rate Loan on the same day as the Administrative Agent's receipt of such notice.
(ii) Not later than 3:00 P.M. on the date specified for each borrowing
under this Section 2.1, each Lender shall, pursuant to the terms and subject to
-----------
the conditions of this Agreement, make the amount of the Advance or Advances to
be made by it on such day available by wire transfer to the Administrative Agent
in the amount of its pro rata share, determined according to such Lender's
Applicable Commitment Percentage of the 364 Day Loan or 364 Day Loans to be made
on such day. Such wire transfer shall be directed to the Administrative Agent at
the Principal Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Borrower on the borrowing date by delivery of the proceeds thereof to the
Borrower's Account or otherwise as shall be directed in the applicable Borrowing
Notice by the Authorized Representative and reasonably acceptable to the
Administrative Agent.
(iii) The Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods and to Convert the 364 Day Loans in
accordance with Section 2.8. Eurodollar Rate Loans and Base Rate Loans may be
-----------
outstanding at the same time, provided, however, there shall not be outstanding
-------- -------
at any one time Eurodollar Rate Loans having more than six (6) different
Interest Periods. If the Administrative Agent does not receive a Borrowing
Notice or an Interest Rate Selection Notice giving notice of election of the
duration of an Interest Period or of Conversion of any Loan to or Continuation
of a Loan as a Eurodollar Rate Loan by the time prescribed by Sections 2.1(c) or
------------------
2.8, the Borrower shall be deemed to have elected to Convert such Loan to (or
- ---
Continue such Loan as) a Base Rate Loan until the Borrower notifies the
Administrative Agent in accordance with Section 2.8.
-----------
II.2. Payment of Interest. (a) The Borrower shall pay interest to the
-------------------
Administrative Agent for the account of each Lender on the outstanding and
unpaid principal amount of each 364 Day Loan made by such Lender for the period
commencing on the date of such 364 Day Loan until such 364 Day Loan shall be due
at the then applicable Base Rate for Base Rate Loans or applicable Eurodollar
Rate for Eurodollar Rate Loans, as designated by the Authorized Representative
pursuant to Section 2.1; provided, however, that if any Event of Default shall
----------- --------
occur and be continuing, all amounts outstanding hereunder shall bear interest
thereafter at the Default Rate.
27
<PAGE>
(b) Interest on each 364 Day Loan shall be computed on the basis of a
year of 360 days and calculated in each case for the actual number of days
elapsed. Interest on each 364 Day Loan shall be paid (i) quarterly in arrears
on the last Business Day of each March, June, September and December, commencing
December 31, 1999 for each Base Rate Loan, (ii) on the last day of the
applicable Interest Period for each Eurodollar Rate Loan, and (iii) upon payment
in full of the principal amount of such 364 Day Loan.
II.3. (a) Payment of Principal. The principal amount of each 364 Day
--------------------
Loan shall be due and payable to the Administrative Agent for the benefit of
each Lender in full on the 364 Day Termination Date, or earlier as specifically
provided herein. The principal amount of any Base Rate Loan may be prepaid in
whole or in part at any time. The principal amount of any Eurodollar Rate Loan
may be prepaid only at the end of the applicable Interest Period unless the
Borrower shall pay to the Administrative Agent for the account of the Lenders
the additional amount, if any, required under Section 4.5. All prepayments of
-----------
364 Day Loans made by the Borrower shall be in the amount of $1,000,000 or such
greater amount which is an integral multiple of $100,000, or the amount equal to
all 364 Day Outstandings, or such other amount as necessary to comply with
Section 2.1(b) or Section 2.8.
- -------------- -----------
(b) Mandatory Prepayments. Subject to the prior rights of lenders
----------------------
under the Existing Credit Agreement, the Borrower shall make the following
required permanent reductions of the Total 364 Day Commitment and prepayments of
Outstanding 364 Day Loans to the extent such amounts are not otherwise paid
pursuant to the Existing Credit Agreement, each such payment to be made to the
Administrative Agent for the benefit of the Lenders within the time period
specified below:
(i) Debt Offerings. The Borrower shall make, or shall cause each
--------------
applicable Subsidiary to make, permanent reductions of the Total 364 Day
Commitment and prepayment of Outstanding 364 Day Loans from the Net
Proceeds of any Debt Offering in an amount equal to one hundred percent
(100%) of such Net Proceeds. Each such prepayment shall be made within
five (5) Business Days of receipt of such Net Proceeds and upon not less
than three (3) Business' Days written notice to the Administrative Agent,
and shall include within one (1) Business Day of repayment a certificate of
an Authorized Representative setting forth in reasonable detail the
calculations utilized in computing the amount of the Net Proceeds.
(ii) Asset Dispositions. The Borrower shall make, or shall cause
------------------
each applicable Subsidiary to make, permanent reductions of the Total 364
Day Commitment and prepayment of Outstanding 364 Day Loans from the Net
Proceeds of any Asset Disposition in an amount equal to one hundred percent
(100%) of such Net Proceeds. Each such prepayment shall be made within five
(5) Business Days of receipt of such Net Proceeds and upon not less than
three (3) Business' Days written notice to the Administrative Agent, which
notice shall include a certificate of Authorized Representative setting
forth in reasonable detail the calculations utilized in computing the
amount of the Net Proceeds.
28
<PAGE>
All mandatory prepayments made pursuant to this Section 2.3(b) shall
--------------
permanently reduce the Total 364 Day Commitment. Any prepayment of an Eurodollar
Rate Loan pursuant to this Section 2.3(b) other than on the last day of an
--------------
Interest Period shall be accompanied by the additional payment, if any, required
by Section 4.5 hereof.
-----------
II.4. Manner of Payment. (a) Each payment of principal (including any
-----------------
prepayment) and payment of interest and fees, and any other amount required to
be paid to the Lenders with respect to the 364 Day Loans, shall be made to the
Administrative Agent at the Principal Office, for the account of each Lender, in
Dollars and in immediately available funds without setoff, deduction or
counterclaim before 3:00 P.M. on the date such payment is due. The
Administrative Agent may, but shall not be obligated to, debit the amount of any
such payment which is not made by such time to any ordinary deposit account, if
any, of the Borrower with the Administrative Agent.
(b) The Administrative Agent shall deem any payment made by or on behalf of
the Borrower hereunder that is not made both in Dollars and in immediately
available funds and prior to 3:00 P.M. to be a non-conforming payment. Any such
payment shall not be deemed to be received by the Administrative Agent until the
later of (i) the time such funds become available funds and (ii) the next
Business Day. Any non-conforming payment may constitute or become a Default or
Event of Default. Interest shall continue to accrue on any principal as to
which a non-conforming payment is made until the later of (x) the date such
funds become available funds or (y) the next Business Day at the Default Rate
from the date such amount was due and payable.
(c) In the event that any payment hereunder or under the 364 Day Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
under clause (ii) of the definition of "Interest Period"; provided that interest
--------
shall continue to accrue during the period of any such extension and provided
--------
further, that in no event shall any such due date be extended beyond the 364 Day
Termination Date.
II.5. 364 Day Notes. 364 Day Loans made by each Lender shall be
-------------
evidenced by the 364 Day Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the 364 Day
Commitment, which 364 Day Note shall be dated the Closing Date or a later date
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by the Borrower.
II.6. Pro Rata Payments. Except as otherwise provided herein, (a) each
-----------------
payment on account of the principal of and interest on the 364 Day Loans and the
fees described in Section 2.10 shall be made to the Administrative Agent for the
------------
account of the Lenders pro rata based on their Applicable Commitment
Percentages, (b) all payments to be made by the Borrower for the account of each
of the Lenders on account of principal, interest and fees, shall be made without
diminution, setoff, recoupment or counterclaim, and (c) the Administrative Agent
will promptly distribute to the Lenders in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.
29
<PAGE>
II.7. Reductions. The Borrower shall, by notice from an Authorized
----------
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Administrative Agent, effective upon receipt, to reduce the Total
364 Day Commitment. The Administrative Agent shall give each Lender, within one
(1) Business Day of receipt of such notice, telefacsimile notice, or telephonic
notice (confirmed in writing), of such reduction. Each such reduction shall be
in the aggregate amount of $1,000,000 or such greater amount which is in an
integral multiple of $500,000, or the entire remaining Total 364 Day Commitment,
and shall permanently reduce the Total 364 Day Commitment. Each reduction of
the Total 364 Day Commitment shall be accompanied by payment of the 364 Day
Loans to the extent that the principal amount of 364 Day Outstandings exceeds
the Total 364 Day Commitment after giving effect to such reduction, together
with accrued and unpaid interest on the amounts prepaid. No such reduction
shall result in the payment of any Eurodollar Rate Loan other than on the last
day of the Interest Period of such Eurodollar Rate Loan unless such prepayment
is accompanied by amounts due, if any, under Section 4.5.
-----------
II.8. Conversions and Elections of Subsequent Interest Periods. Subject
--------------------------------------------------------
to the limitations set forth below and in Article IV, the Borrower may:
----------
(a) upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Administrative Agent on or before 11:00
A.M. on any Business Day, Convert all or a part of Eurodollar Rate Loans under
the 364 Day Facility to Base Rate Loans on the last day of the Interest Period
for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Administrative Agent on or before 2:00
P.M. three (3) Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all or a portion of
Eurodollar Rate Loans under the 364 Day Facility to begin on the last
day of the then current Interest Period for such Eurodollar Rate
Loans; and
(ii) Convert Base Rate Loans under the 364 Day Facility to
Eurodollar Rate Loans on any Business Day.
Each election and Conversion pursuant to this Section 2.8 shall be subject
-----------
to the limitations on Eurodollar Rate Loans set forth in the definition of
"Interest Period" herein and in Sections 2.1, 2.3 and Article IV. The
----------------- ----------
Administrative Agent shall give written notice to each Lender of such notice of
election or Conversion prior to 3:00 P.M. on the day such notice of election or
Conversion is received. All such Continuations or Conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
30
<PAGE>
II.9. Increase and Decrease in Amounts. The amount of the Total 364 Day
--------------------------------
Commitment which shall be available to the Borrower as Advances shall be reduced
by the aggregate amount of 364 Day Outstandings.
II.10. Unused Fee. For the period beginning on the Closing Date and
----------
ending on the 364 Day Termination Date, the Borrower agrees to pay to the
Administrative Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, an unused fee equal to the Applicable Unused
Fee multiplied by the average daily amount by which the Total 364 Day Commitment
exceeds the 364 Day Outstandings. Such fees shall be due in arrears on the last
Business Day of each March, June, September and December commencing December 31,
1999 to and on the 364 Day Termination Date. Notwithstanding the foregoing, so
long as any Lender fails to make available any portion of its 364 Day Commitment
when required, such Lender shall not be entitled to receive payment of its pro
rata share of such fee until such Lender shall make available such portion.
Such fee shall be calculated on the basis of a year of 360 days for the actual
number of days elapsed.
II.11. Deficiency Advances. No Lender shall be responsible for any
-------------------
default of any other Lender in respect to such other Lender's obligation to make
any Loan or Advance hereunder nor shall the 364 Day Commitment of any Lender
hereunder be increased as a result of such default of any other Lender. Without
limiting the generality of the foregoing or the provisions of Section 2.11, in
------------
the event any Lender shall fail to advance funds to the Borrower as herein
provided, the Administrative Agent may in its discretion, but shall not be
obligated to, advance under the applicable Note in its favor as a Lender all or
any portion of such amount or amounts (each, a "deficiency advance") and shall
thereafter be entitled to payments of principal of and interest on such
deficiency advance in the same manner and at the same interest rate or rates to
which such other Lender would have been entitled had it made such Advance under
its Note; provided that, (i) such defaulting Lender shall not be entitled to
receive payments of principal, interest or fees with respect to such deficiency
advance until such deficiency advance (together with interest thereon as
provided in clause (ii)) shall be paid by such Lender and (ii) upon payment to
the Administrative Agent from such other Lender of the entire outstanding amount
of each such deficiency advance, together with accrued and unpaid interest
thereon, from the most recent date or dates interest was paid to the
Administrative Agent by a Borrower on each Loan comprising the deficiency
advance at the Federal Funds Rate, then such payment shall be credited against
the applicable Note of the Administrative Agent in full payment of such
deficiency advance and such Borrower shall be deemed to have borrowed the amount
of such deficiency advance from such other Lender as of the most recent date or
dates, as the case may be, upon which any payments of interest were made by such
Borrower thereon.
II.12. Intraday Funding. Without limiting the provisions of Section 2.11
---------------- ------------
unless the Borrower or any Lender has notified the Administrative Agent not
later than 12:00 Noon of the Business Day before the date any payment (including
in the case of Lenders any Advance but in the case of an Advance which bears
interest at the Base Rate at 12:00 Noon on the date for the making of such
Advance) to be made by it is due, that it does not intend to remit such payment,
the Administrative Agent may, in its discretion, assume that Borrower or each
Lender, as the case may be, has timely
31
<PAGE>
remitted such payment in the manner required hereunder and may, in its
discretion and in reliance thereon, make available such payment (or portion
thereof) to the Person entitled thereto as otherwise provided herein. If such
payment was not in fact remitted to the Administrative Agent in the manner
required hereunder, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the amount of such
assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including the date such amount was
made available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Administrative
Agent shall be entitled to recover such corresponding amount forthwith upon
the Administrative Agent's demand therefor, the Administrative Agent
promptly shall notify the Borrower, and the Borrower shall promptly pay
such corresponding amount to the Administrative Agent in immediately
available funds upon receipt of such demand. The Administrative Agent also
shall be entitled to recover interest on such corresponding amount in
respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate or
(B) from the Borrower, at a rate per annum equal to the interest rate
applicable to the Loan which includes such corresponding amount. Until the
Administrative Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a deficiency
advance within the meaning of Section 2.11. Nothing herein shall be deemed
------------
to relieve any Lender from its obligation to fulfill its commitments
hereunder or to prejudice any rights which the Administrative Agent or the
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
II.13. Use of Proceeds. The proceeds of the Loans made pursuant to the
---------------
364 Day Facility hereunder shall be used by the Borrower to prepay Senior Notes
and for no other purpose.
32
<PAGE>
ARTICLE III
Security
--------
III.1. Security Event. The Borrower shall execute and deliver to the
--------------
Administrative Agent on or before the Closing Date the Security Instruments and
related financing statements with the understanding that such documents shall
not be deemed delivered or effective to create a security interest in the
Collateral described therein until the occurrence of a Security Event and, in
the case of the Mortgage, the recording thereof in Mecklenburg County, North
Carolina Public Registry. Upon the occurrence of a Security Event, the Security
Instruments and related financing statements shall be deemed delivered without
further action of the Borrower and shall be dated by the Administrative Agent
the date of occurrence of the Security Event and the Administrative Agent may
file the Mortgage and financing statements and such other instruments and
documentation as it shall deem necessary to perfect the security interest in the
Collateral described therein in favor of the Administrative Agent for the
benefit of the Lenders. The Borrower shall deliver to the Administrative Agent
within ten (10) days of the recording of the Mortgage an ALTA Mortgagee's Title
Insurance Policy in the amount of the outstanding Loans containing only those
exceptions set forth in Section 2 of Schedule B to Title Insurance Commitment
No. 1001114 dated October 13, 1999 issued by Lawyers Title Insurance
Corporation. The Borrower hereby agrees to pay to the Administrative Agent upon
demand all costs and expenses, including fees of counsel for the Administrative
Agent, incurred in connection with such perfection of the security interest. In
addition, the Borrower shall execute and deliver to the Administrative Agent
such instruments and documents as the Administrative Agent may request in order
to create and perfect the security interest described in the Security Agreement.
III.2. Guaranty. The Borrower shall cause AFI to deliver the AFI Guaranty
--------
on or before the Closing Date. The Borrower hereby agrees to cause a Facility
Guaranty to be delivered by any Domestic Subsidiary acquired or created after
the Closing Date pursuant to the terms of Section 7.19 hereof.
------------
III.3. Further Assurances. At the request of the Administrative Agent,
------------------
from and after the occurrence of a Security Event, the Borrower will or will
cause its Subsidiaries, as the case may be to execute, by its duly authorized
officers, alone or with the Administrative Agent, any certificate, instrument,
statement or document, or to procure any such certificate, instrument, statement
or document, or to take such other action (and pay all connected costs) which
the Administrative Agent reasonably deems necessary from time to time to create,
continue or preserve the liens and security interests in Collateral (and the
perfection and priority thereof) of the Administrative Agent contemplated hereby
and by the other Loan Documents and specifically including all Collateral
acquired by the Borrower or any Guarantor after the occurrence of a Security
Event.
III.4. Information Regarding Collateral. The Borrower represents,
--------------------------------
warrants and covenants that (i) the chief executive office of the Borrower and
each other Person providing Collateral pursuant to a Security Instrument (each,
a "Grantor") at the Closing Date is located at
33
<PAGE>
the address or addresses specified on Schedule 3.4 and (ii) Schedule 3.4
------------ ------------
contains a true and complete list of (a) the name and address of each Grantor
and of each other Person that has effected any merger or consolidation with a
Grantor or contributed or transferred to a Grantor any property constituting
Collateral at any time since January 1, 1994 (excluding Persons making sales in
the ordinary course of their businesses to a Grantor of property constituting
inventory in the hands of such seller), (b) each location of the chief executive
office of each Grantor at any time since January 1, 1994, (c) each location in
which goods constituting Collateral are or have been located since January 1,
1994 (together with the name of each owner of the property located at such
address if not the applicable Grantor, and a summary description of the
relationship between the applicable Grantor and such Person), and (d) each trade
style used by any Grantor since January 1, 1994 and the purposes for which it
was used. Borrower shall not change, and shall not permit any other Grantor to
change, the location of its chief executive office or any location specified in
clause (c) of the immediately preceding sentence, or use or permit any other
Grantor to use, any additional trade style, except upon giving not less than
thirty (30) days' prior written notice to the Administrative Agent and taking or
causing to be taken all such action at Borrower's or such other Grantor's
expense as may be reasonably requested by the Administrative Agent to perfect or
maintain the perfection of the Lien of the Administrative Agent in the
Collateral.
34
<PAGE>
ARTICLE IV
Change in Circumstances
-----------------------
IV.1. Increased Cost and Reduced Return.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable law, rule,
or regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any Eurodollar
Rate Loans, its Note, or its obligation to make Eurodollar Rate Loans, or
change the basis of taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement or its Note in respect of
any Eurodollar Rate Loans (other than taxes imposed on the overall net
income of such Lender by the jurisdiction in which such Lender has its
principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment or similar requirement (other than the Reserve
Requirement utilized in the determination of the Eurodollar Rate) relating
to any extensions of credit or other assets of, or any deposits with or
other liabilities or commitments of, such Lender (or its Applicable Lending
Office), including the 364 Day Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the London interbank market any other condition affecting
this Agreement or its Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Loans or to reduce any sum received or receivable by such Lender
(or its Applicable Lending Office) under this Agreement or its Note with respect
to any Eurodollar Rate Loans, then the Borrower shall pay to such Lender on
demand such amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower under
this Section 4.1(a), the Borrower may, by notice to such Lender (with a copy to
--------------
the Administrative Agent), suspend the obligation of such Lender to make or
Continue Loans of the Type with respect to which such compensation is requested,
or to Convert Loans of any other Type into Loans of such Type, until the event
or condition giving rise to such request ceases to be in effect (in which case
the provisions of Section 4.4 shall be applicable); provided that such
----------- --------
suspension shall not affect the right of such Lender to receive the compensation
so requested.
35
<PAGE>
(b) If, after the date hereof, any Lender shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
governmental authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) Each Lender shall promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section 4.1 and
-----------
will designate a different Applicable Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to it. Any
Lender claiming compensation under this Section 4.1 shall furnish to the
-----------
Borrower and the Administrative Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
IV.2. Limitation on Types of Loans. If on or prior to the first day of
----------------------------
any Interest Period for any Eurodollar Rate Loan:
(a) the Administrative Agent determines (which determination shall
be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Administrative Agent that the Eurodollar Rate
will not adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Administrative Agent shall give the Borrower prompt notice thereof
specifying the relevant Type of Loans and the relevant amounts or periods, and
so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Loans of such Type, Continue Loans of such Type,
or to Convert Loans of any other Type into Loans of such Type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with the terms of this Agreement.
36
<PAGE>
IV.3. Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Rate Loans
hereunder, then such Lender shall promptly notify the Borrower thereof and such
Lender's obligation to make or Continue Eurodollar Rate Loans and to Convert
other Types of Loans into Eurodollar Rate Loans shall be suspended until such
time as such Lender may again make, maintain, and fund Eurodollar Rate Loans (in
which case the provisions of Section 4.4 shall be applicable).
-----------
IV.4. Treatment of Affected Loans. If the obligation of any Lender to
---------------------------
make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 4.1
------------
or 4.3 hereof (Loans of such Type being herein called "Affected Loans" and such
- ------
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 4.3 hereof, on such earlier date as such Lender
-----------
may specify to the Borrower with a copy to the Administrative Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 4.1 or 4.3 hereof that gave rise to such Conversion no
------------------
longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Loans of the Affected Type shall be made or Continued instead as
Base Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Loans of the Affected Type shall be Converted instead into
(or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Administrative
Agent) that the circumstances specified in Section 4.1 or 4.3 hereof that gave
------------------
rise to the Conversion of such Lender's Affected Loans pursuant to this Section
-------
4.4 no longer exist (which such Lender agrees to do promptly upon such
- ---
circumstances ceasing to exist) at a time when Loans of the Affected Type made
by other Lenders are outstanding, such Lender's Base Rate Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Loans of the Affected Type, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders
holding Loans of the Affected Type and by such Lender are held pro rata (as to
principal amounts, Types, and Interest Periods) in accordance with their
respective 364 Day Commitments.
IV.5. Compensation. Upon the request of any Lender, the Borrower shall
------------
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
37
<PAGE>
(a) any payment, prepayment, or Conversion of a Eurodollar Rate
Loan for any reason (including, without limitation, the acceleration of the
Loans pursuant to Section 9.1) on a date other than the last day of the
-----------
Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article V
---------
to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar Rate
Loan on the date for such borrowing, Conversion, Continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
Continuation, or Conversion under this Agreement.
IV.6. Taxes. (a) Any and all payments by the Borrower to or for the
-----
account of any Lender or the Administrative Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any and
all present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
---------
of each Lender and the Administrative Agent, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Lender (or its Applicable Lending Office) or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof (all such non-
excluded taxes, duties, levies, imposts, deductions, charges, withholdings, and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable under
this Agreement or any other Loan Document to any Lender or the Administrative
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 4.6) such Lender or the Administrative Agent receives
-----------
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law, and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 11.2, 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 Agreement or any
other Loan Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section 4.6) paid by such Lender or the
-----------
Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender
38
<PAGE>
listed on the signature pages hereof and on or prior to the date on which it
becomes a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Administrative Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Administrative Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents .
(e) For any period with respect to which a Lender has failed to provide the
Borrower and the Administrative Agent with the appropriate form pursuant to
Section 4.6(d) (unless such failure is due to a change in treaty, law, or
- --------------
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to indemnification
under Section 4.6(a) or 4.6(b) with respect to Taxes imposed by the United
------------------------
States; provided, however, that should a Lender, which is otherwise exempt from
-------- -------
or subject to a reduced rate of withholding tax, become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.6, then such Lender will agree
-----------
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower 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
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 4.6 shall survive the termination of the 364 Day Commitments and
-----------
the payment in full of the Notes.
39
<PAGE>
ARTICLE V
Conditions to Making Loans
--------------------------
V.1. Conditions of Initial Advance. The obligation of the Lenders to
-----------------------------
make the initial Advance under the 364 Day Facility is subject to the conditions
precedent that:
(a) the Administrative Agent shall have received on the Closing
Date, in form and substance satisfactory to the Administrative Agent and
Lenders, the following:
(i) executed originals of each of this Agreement, the
Notes, the Security Instruments and the other Loan Documents, together
with all schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with respect
to the Loan Documents and the transactions contemplated thereby of
counsel to the Credit Parties dated the Closing Date, addressed to the
Administrative Agent and the Lenders and satisfactory to Smith Helms
Mulliss & Moore, L.L.P., special counsel to the Administrative Agent,
substantially in the form of Exhibit G;
---------
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee thereof)
of each Credit Party certified by its secretary or assistant secretary
as of the Closing Date, approving and adopting the Loan Documents to
be executed by such Person, and authorizing the execution and delivery
thereof;
(iv) specimen signatures of officers of each of the Loan
Parties executing the Loan Documents on behalf of such Credit Party,
certified by the secretary or assistant secretary of such Credit
Party;
(v) the Organizational Documents of each of the Loan
Parties certified as of a recent date by the Secretary of State of its
state of organization;
(vi) Operating Documents of each of the Loan Parties certified
as of the Closing Date as true and correct by its secretary or
assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of formation of
each of the Loan Parties as to the due existence and good standing of
such Person;
(viii) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to conduct
business under assumed name, issued in respect of each of the Loan
Parties as of a recent date by the Secretary of State or comparable
official of each jurisdiction in which the failure to be qualified to
40
<PAGE>
do business or authorized so to conduct business could have a Material
Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) evidence of all insurance required by the Loan
Documents;
(xi) an initial Borrowing Notice, if any, and, if elected
by the Borrower, Interest Rate Selection Notice;
(xii) evidence that all fees payable by the Borrower on the
Closing Date to the Administrative Agent, BAS and the Lenders have
been paid in full;
(xiii) Uniform Commercial Code search results showing only
those Liens as are acceptable to the Lenders;
(xiv) receipt of any consents to the transactions
contemplated in this Agreement or any other Loan Document and to the
change in ownership of FLS required under the Existing Credit
Agreement; and
(xv) receipt of any other consents to the transactions
contemplated in this Agreement or any other Loan Documents to the
extent required;
(xvi) with respect to the Mortgage Property, the
Administrative Agent shall have received (a) an appraisal of such
Mortgage Property from an independent appraiser acceptable to the
Administrative Agent indicating a current market value of the Mortgage
Property, plus equipment located thereon, of not less than
$100,000,000, (b) an as-built survey of the Mortgage Property in form
and content acceptable to the Administrative Agent, (c) a commitment
from a title insurance company acceptable to the Administrative Agent
to issue a policy of title insurance in the amount of the Total 364
Day Commitment in the event of the occurrence of a Security Event with
only such exceptions to title and containing endorsements approved by
the Administrative Agent, (d) evidence that no portion of the Mortgage
Property is located in a flood hazard area, (e) evidence of insurance
of the kind and type required by the Mortgage issued by insurance
companies acceptable to the Lender, and (f) an environmental
assessment of the Mortgage Property prepared by an independent third
party acceptable to the Administrative Agent;
(xvii) evidence of the Change of Control of FLS; and
(xviii) such other documents, instruments, certificates and
opinions as the Administrative Agent or any Lender may reasonably
request on or prior to the
41
<PAGE>
Closing Date in connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Administrative Agent and the
Lenders:
(i) there shall not have occurred or become known to the
Administrative Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the financial
and business projections, budgets, pro forma data and forecasts
concerning the Borrower and its Subsidiaries the Credit Parties
delivered to the Administrative Agent prior to the Closing Date that
has had or could reasonably be expected to result in a Material
Adverse Effect;
(ii) no litigation, action, suit, investigation or other
arbitral, administrative or judicial proceeding shall be pending or
threatened which is reasonably likely to result in a Material Adverse
Effect; and
(iii) the Loan Parties shall have received all approvals,
consents and waivers, and shall have made or given all necessary
filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or arbitral
authority or (B) any agreement, document or instrument to which any of
the Loan Parties is a party or by which any of them or their
properties is bound, including without limitation, the Indenture.
V.2. Conditions of 364 Day Loans. The obligations of the Lenders to
---------------------------
make any 364 Day Loans hereunder on or subsequent to the Closing Date are
subject to the satisfaction of the following conditions:
(a) the Administrative Agent shall have received a Borrowing Notice if
required by Article II;
----------
(b) the representations and warranties of the Loan Parties set forth
in Article VI and in each of the other Loan Documents shall be true and
-----------
correct in all material respects on and as of the date of such Advance with
the same effect as though such representations and warranties had been made
on and as of such date, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 6.6(a)(i) shall be deemed to be
-----------------
those financial statements most recently delivered to the Administrative
Agent and the Lenders pursuant to Section 7.1 from the date financial
-----------
statements are delivered to the Administrative Agent and the Lenders in
accordance with such Section;
(c) at the time of (and after giving effect to) each Advance, no
Default or Event of Default specified in Article IX shall have occurred and
----------
be continuing;
42
<PAGE>
(d) immediately after giving effect to a 364 Day Loan, the aggregate
principal balance of all outstanding 364 Day Loans for each Lender shall
not exceed such Lender's 364 Day Commitment and the aggregate amount of all
364 Day Loans shall not exceed the Total 364 Day Commitment; and
(e) the Administrative Agent shall have received evidence acceptable
to the Administrative Agent that the proceeds of such 364 Day Loan are used
to purchase Senior Notes.
5.3. Supplements to Schedules. The Borrower may, from time to time but in
------------------------
no event less than five (5) Business Days prior to delivery of any Borrowing
Notice hereunder, amend or supplement Schedules 6.10 and 6.18 to this Agreement
-------------- ----
by delivering (effective upon receipt) to the Administrative Agent and each
Lender a copy of such revised Schedule or Schedules which shall (i) be dated the
date of delivery, (ii) be certified by an Authorized Representative as true,
complete and correct as of such date and as delivered in replacement for the
corresponding Schedule or Schedules previously in effect, and (iii) show in
reasonable detail (by blacklining or other graphic means) the material changes
from each such corresponding predecessor Schedule. In the event the Required
Lenders determine based upon such revised Schedules (whether individually or in
the aggregate) that there has been a material change which would have a Material
Adverse Effect since the Closing Date, or such later date as the Borrower shall
have most recently furnished supplements to Schedules under this Section 5.3 or
-----------
financial statements under Section 7.1(a) or (b), the Lenders, upon notification
-------------- ---
to the Borrower, shall have no further obligation to make Advances or Continue
or Convert any Loan previously made.
43
<PAGE>
ARTICLE VI
Representations and Warranties
------------------------------
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
VI.1. Organization and Authority.
--------------------------
(a) The Borrower and each Subsidiary is a corporation duly organized
and validly existing under the laws of the jurisdiction of its formation;
(b) The Borrower and each Subsidiary (x) has the requisite power and
authority to own its properties and assets and to carry on its business as
now being conducted and as contemplated in the Loan Documents, and (y) is
qualified to do business in every jurisdiction in which failure so to
qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute, deliver
and perform this Agreement and the Notes, and to borrow hereunder, and to
execute, deliver and perform each of the other Loan Documents to which it
is a party;
(d) Each Credit Party (other than the Borrower) has the power and
authority to execute, deliver and perform the Facility Guaranty and each of
the other Loan Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to which
any Credit Party is a party will be the legal, valid and binding obligation
or agreement, as the case may be, of such Credit Party, enforceable against
such Credit Party in accordance with its terms, subject to the effect of
any applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights generally and
to the effect of general principles of equity (whether considered in a
proceeding at law or in equity).
VI.2. Loan Documents. The execution, delivery and performance by each
--------------
Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational Action
of such Credit Party required for the lawful execution, delivery and
performance thereof;
(b) do not violate any provisions of (i) applicable law, rule or
regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority binding
on such Credit Party or its properties, or (iii) the Organizational
Documents or Operating Documents of such Credit Party;
44
<PAGE>
(c) does not and will not be in conflict with, result in a breach of
or constitute an event of default, or an event which, with notice or lapse
of time or both, would constitute an event of default, under any contract,
indenture, agreement or other instrument or document to which such Credit
Party is a party, or by which the properties or assets of such Credit Party
are bound; and
(d) does not and will not result in the creation or imposition of any
Lien upon any of the properties or assets of such Credit Party or any
Subsidiary except any Liens in favor of the Administrative Agent and the
Lenders created by the Security Instruments.
VI.3. Solvency. Each Credit Party is Solvent after giving effect to the
--------
transactions contemplated by the Loan Documents.
VI.4. Subsidiaries and Stockholders. The Borrower has no Subsidiaries
-----------------------------
other than those Persons listed as Subsidiaries in Schedule 6.4 and additional
------------
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.19; Schedule 6.4 states as of the date hereof the organizational form
- ------------ ------------
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
--------
6.4, free and clear of any Lien except as set forth on Schedule 6.7.
------------
VI.5. Ownership Interests. Borrower owns no interest in any Person
-------------------
other than the Persons listed in Schedule 6.4, equity investments in Persons not
------------
constituting Subsidiaries permitted under Section 8.7 and additional
-----------
Subsidiaries created or acquired after the Closing Date in compliance with
Section 7.19.
- ------------
VI.6. Financial Condition.
-------------------
(a) The Borrower has heretofore furnished to each Lender a
consolidated audited balance sheet of the Borrower and its Subsidiaries as
at March 31, 1999 and the notes thereto and the related consolidated
statements of operations, stockholder's equity and cash flows for the
Fiscal Year then ended as examined and certified by Arthur Andersen LLP and
unaudited consolidated interim financial statements of the Borrower and its
Subsidiaries consisting of a consolidated balance sheet and related
consolidated statements of operations, stockholder's equity and cash flows,
in each case without notes, for and as of the three month period ending
June 30, 1999. Except as set forth therein, such financial statements
(including the notes thereto) present fairly the financial condition of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and three
month period and results of their operations and the changes in its
stockholder's equity for the
45
<PAGE>
Fiscal Year and interim period then ended, all in conformity with GAAP
applied on a Consistent Basis ;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to Section 6.6(a) hereof or (ii) the date of
--------------
the audited financial statements most recently delivered pursuant to
Section 7.1(a) hereof, there has been no material adverse change in the
--------------
condition, financial or otherwise, of the Borrower or any of its
Subsidiaries or in the businesses, properties, performance, prospects or
operations of the Borrower or its Subsidiaries, nor have such businesses or
properties been materially adversely affected as a result of any fire,
explosion, earthquake, accident, strike, lockout, combination of workers,
flood, embargo or act of God; and
(c) except as set forth in the financial statements referred to in
Section 6.6(a) or in Schedule 6.6 or permitted by Section 8.5, neither
-------------- ------------ -----------
Borrower nor any Subsidiary has incurred, other than in the ordinary course
of business, any material Indebtedness, Guaranties or other commitment or
liability which remains outstanding or unsatisfied.
VI.7. Title to Properties. The Borrower and each of its Subsidiaries
-------------------
and each other Credit Party has good and marketable title to all its real and
personal properties, subject to no transfer restrictions or Liens of any kind,
except for the transfer restrictions and Liens described in Schedule 6.7 and
------------
Liens permitted by Section 8.4.
-----------
VI.8. Taxes. Except as set forth in Schedule 6.8, the Borrower and each
----- ------------
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in Section 6.6(a) and satisfactory to the Borrower's independent
--------------
certified public accountants have been established, have paid or caused to be
paid all taxes as shown on said returns or on any assessment received by it, to
the extent that such taxes have become due.
VI.9. Other Agreements. No Credit Party nor any Subsidiary is
----------------
(a) a party to or subject to any judgment, order, decree, agreement,
lease or instrument, or subject to other restrictions, which individually
or in the aggregate would reasonably be expected to have a Material Adverse
Effect; or
(b) in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any agreement or
instrument to which such Credit Party or any Subsidiary is a party, which
default has, or if not remedied within any applicable grace period would
reasonably be likely to have, a Material Adverse Effect.
VI.10. Litigation. Except as set forth in Schedule 6.10, there is no
---------- -------------
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or
46
<PAGE>
against the Borrower or any Subsidiary or other Credit Party or affecting the
Borrower or any Subsidiary or other Credit Party or any properties or rights of
the Borrower or any Subsidiary or other Credit Party, which would reasonably be
likely to have a Material Adverse Effect.
VI.11. Margin Stock. The proceeds of the borrowings made hereunder will
------------
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
VI.12. Investment Company. No Credit Party is an "investment company,"
------------------
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. (S) 80a-1, et seq.). The application of the proceeds
of the Loans and repayment thereof by the Borrower and the performance by the
Borrower and the other Loan Parties of the transactions contemplated by the Loan
Documents will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in each case
as in effect on the date hereof.
VI.13. Patents, Etc. The Borrower and each other Credit Party owns or
------------
has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person,
except in each case where the use or conflict would not reasonably be likely to
have a Material Adverse Effect.
VI.14. No Untrue Statement. Neither (a) this Agreement nor any other
-------------------
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Administrative Agent in connection with the negotiation or preparation of the
Loan Documents contains any misrepresentation or untrue statement of material
fact or omits to state a material fact necessary, in light of the circumstance
under which it was made, in order to make any such warranty, representation or
statement contained therein not misleading.
VI.15. No Consents, Etc. Neither the respective businesses or
----------------
properties of the Loan Parties or any Subsidiary, nor any relationship among the
Loan Parties or any Subsidiary and any
47
<PAGE>
other Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated thereby,
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority or any other
Person on the part of any Credit Party as a condition to the execution, delivery
and performance of, or consummation of the transactions contemplated by the Loan
Documents, which, if not obtained or effected, would be reasonably likely to
have a Material Adverse Effect, or if so, such consent, approval, authorization,
filing, registration or qualification has been duly obtained or effected, as the
case may be.
VI.16. Employee Benefit Plans.
----------------------
(a) Except where noncompliance would not have a Material Adverse
Effect or result in a liability or potential liability exceeding
$1,000,000, the Borrower and each ERISA Affiliate is in compliance with all
applicable provisions of ERISA and the regulations and published
interpretations thereunder and in compliance with all Foreign Benefit Laws
with respect to all Employee Benefit Plans except for any required
amendments for which the remedial amendment period as defined in Section
401(b) of the Code has not yet expired. Each Employee Benefit Plan that is
intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified, and each
trust related to such plan has been determined to be exempt under Section
501(a) of the Code. No material liability has been incurred by the Borrower
or any ERISA Affiliate which remains unsatisfied for any taxes or penalties
with respect to any Employee Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i) engaged in
a nonexempt prohibited transaction described in Section 4975 of the Code or
Section 406 of ERISA affecting any of the Employee Benefit Plans or the
trusts created thereunder which could subject any such Employee Benefit
Plan or trust to a material tax or penalty on prohibited transactions
imposed under Internal Revenue Code Section 4975 or ERISA, (ii) incurred
any accumulated funding deficiency with respect to any Employee Benefit
Plan, whether or not waived, or any other liability to the PBGC which
remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid, (iii) failed to make a required
contribution or payment to a Multiemployer Plan, or (iv) failed to make a
required installment or other required payment under Section 412 of the
Code, Section 302 of ERISA or the terms of such Employee Benefit Plan;
(c) No Termination Event has occurred or is reasonably expected to
occur with respect to any Pension Plan or Multiemployer Plan, and neither
the Borrower nor any ERISA Affiliate has incurred any unpaid withdrawal
liability with respect to any Multiemployer Plan;
(d) Except to the extent permitted by ERISA, the present value of
all vested accrued benefits under each Employee Benefit Plan which is
subject to Title IV of ERISA,
48
<PAGE>
did not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee Benefit
Plan subject to Title IV of ERISA, maintained by the Borrower or any ERISA
Affiliate, has been administered in accordance with its terms in all
material respects and is in compliance in all material respects with all
applicable requirements of ERISA and other applicable laws, regulations and
rules ;
(f) The consummation of the Loans provided for herein will not
involve any prohibited transaction under ERISA which is not subject to a
statutory or administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or investigation
exists or, to the best knowledge of the Borrower after due inquiry, is
threatened concerning or involving any Employee Benefit Plan.
VI.17. No Default. As of the date hereof, there does not exist any
----------
Default or Event of Default hereunder.
VI.18. Environmental Laws. Except as listed on Schedule 6.18, the
------------------ -------------
Borrower and each Subsidiary is in material compliance with all applicable
Environmental Laws and has been issued and currently maintains all required
federal, state and local permits, licenses, certificates and approvals. Except
as listed on Schedule 6.18, neither the Borrower nor any Subsidiary has been
-------------
notified of any pending or threatened action, suit, proceeding or investigation,
and neither the Borrower nor any Subsidiary is aware of any facts, which (a)
calls into question, or could reasonably be expected to call into question,
material compliance by the Borrower or any Subsidiary with any Environmental
Laws, (b) seeks, or could reasonably be expected to form the basis of a
meritorious proceeding, to suspend, revoke or terminate any material license,
permit or approval necessary for the operation of the Borrower's or any
Subsidiary's business or facilities or for the generation, handling, storage,
treatment or disposal of any Hazardous Materials, or (c) seeks to cause, or
could reasonably be expected to form the basis of a meritorious proceeding to
cause, any property of the Borrower or any Subsidiary or other Credit Party to
be subject to any material restrictions on ownership, use, occupancy or
transferability under any Environmental Law.
VI.19. Employment Matters. (a) None of the employees of the Borrower
------------------
or any Subsidiary is subject to any collective bargaining agreement and there
are no strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or other
material labor/employee related controversies or proceedings pending or, to the
best knowledge of the Borrower, threatened against the Borrower or any
Subsidiary or between the Borrower or any Subsidiary and any of its employees,
other than employee grievances arising in the ordinary course of business which
would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and
49
<PAGE>
(b) Except to the extent a failure to maintain compliance would not
reasonably be expected to have a Material Adverse Effect, the Borrower and each
Subsidiary is in compliance in all respects with all applicable laws, rules and
regulations pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and taxation
and there is neither pending or threatened any litigation, administrative
proceeding nor, to the knowledge of the Borrower, any investigation, in respect
of such matters which, if decided adversely, would reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
VI.20. RICO. Neither the Borrower nor any Subsidiary is engaged in or
----
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
VI.21. Year 2000 Compliance. The Borrower and its Subsidiaries have (i)
--------------------
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be Year 2000 Compliant, except to the extent that a failure to do
so could not reasonably be expected to have a Material Adverse Effect.
50
<PAGE>
ARTICLE VII
Affirmative Covenants
---------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
VII.1. Financial Reports, Etc. (a) As soon as practical and in any
----------------------
event within 90 days after the end of each Fiscal Year of the Borrower, deliver
or cause to be delivered to the Administrative Agent and each Lender (i) balance
sheets of the Borrower and its Subsidiaries as at the end of such Fiscal Year,
and the notes thereto, and the related statements of operations, stockholder's
equity and cash flows, and the respective notes thereto, for such Fiscal Year,
setting forth comparative financial statements for the preceding Fiscal Year
with a narrative discussion of the comparative financial results and financial
condition of the two periods, all prepared in accordance with GAAP applied on a
Consistent Basis and containing, with respect to the consolidated financial
statements, opinions of Arthur Andersen LLP, or other such independent certified
public accountants selected by the Borrower and approved by the Administrative
Agent, which are unqualified as to the scope of the audit performed and as to
the "going concern" status of the Borrower and without any exception not
acceptable to the Required Lenders, and (ii) a certificate of an Authorized
Representative demonstrating compliance with Sections 8.1(a) through 8.1(c),
--------------- -------
8.3, 8.5(g) and 8.9, which certificate shall be in the form of Exhibit H. To
- --- ------ --- ---------
the extent that the Borrower's annual report on Form 10-K contains any of the
foregoing items, the Administrative Agent and the Lenders will accept the
Borrower's Form 10-K in lieu of such items;
(b) as soon as practical and in any event within 45 days after the end of
each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
beginning with the fiscal quarter ending on September 30, 1999, deliver to the
Administrative Agent and each Lender (i) balance sheets of the Borrower and its
Subsidiaries as at the end of such fiscal quarter and most recent Fiscal Year,
and the related statements of operations and cash flows for such fiscal quarter
and for the comparable fiscal quarter in the prior Fiscal Year with a narrative
discussion of the comparative financial results and financial condition of the
two periods, and accompanied by a certificate of an Authorized Representative to
the effect that such financial statements present fairly the financial position
of the Borrower and its Subsidiaries as of the end of such fiscal period and the
results of their operations and the changes in their financial position for such
fiscal period, subject to year end audit and other customary adjustments to
interim financial statements and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to Section 7.1(a)(ii); to the extent that the Borrower's
------------------
quarterly report on Form 10-Q contains any of the foregoing items, the
Administrative Agent and the Lenders will accept the Borrower's Form 10-Q in
lieu of such items;
(c) together with each delivery of the financial statements required by
Section 7.1(a)(i), deliver to the Administrative Agent and each Lender a letter
- -----------------
from the Borrower's accountants specified in Section 7.1(a)(i) stating that in
-----------------
performing the audit necessary to render an opinion
51
<PAGE>
on the financial statements delivered under Section 7.1(a)(i), they obtained no
-----------------
knowledge of any Default or Event of Default by the Borrower in the fulfillment
of the terms and provisions of this Agreement insofar as they relate to
financial matters (which at the date of such statement remains uncured); or if
the accountants have obtained knowledge of such Default or Event of Default, a
statement specifying the nature and period of existence thereof;
(d) promptly upon their becoming available to the Borrower, the Borrower
shall deliver to the Administrative Agent and each Lender a copy of (i) all
regular or special reports or effective registration statements which Borrower
or any Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower or any Subsidiary to its shareholders, bondholders
or the financial community in general, and (iii) any management letter or other
report submitted to the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or any
Subsidiary;
(e) not later than ninety (90) days after the last Business Day of each
Fiscal Year, deliver to the Administrative Agent and each Lender a projection of
the expected financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis for the upcoming Fiscal Year
(including, but not limited to, a projected consolidated balance sheet,
statement of operations, statement of cash flows and statement of changes in
stockholder's equity, and including a detailed breakdown of proposed Capital
Expenditures, with a narrative discussion of the assumptions behind the
projections); and
(f) promptly, from time to time, deliver or cause to be delivered to the
Administrative Agent and each Lender such other information regarding Borrower's
and any Subsidiary's operations, business affairs and financial condition as the
Administrative Agent or such Lender may reasonably request;
The Administrative Agent and the Lenders are hereby authorized to deliver a
copy of any such financial or other information delivered hereunder to the
Lenders (or any affiliate of any Lender) or to the Administrative Agent, to any
Governmental Authority having jurisdiction over the Administrative Agent or any
of the Lenders pursuant to any written request therefor or in the ordinary
course of examination of loan files, or to any other Person who shall acquire or
consider the assignment of, or acquisition of any participation interest in, any
Obligation permitted by this Agreement.
VII.2. Maintain Properties. Maintain all properties necessary to its
-------------------
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices.
52
<PAGE>
VII.3. Existence, Qualification, Etc. Except as otherwise expressly
-----------------------------
permitted under Section 8.8, or except to the extent the failure would not
-----------
reasonably be expected to have a Material Adverse Effect, do or cause to be done
all things necessary to preserve and keep in full force and effect its existence
and all material rights and franchises, and maintain its license or
qualification to do business as a foreign corporation and good standing in each
jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary.
VII.4. Regulations and Taxes. Comply in all material respects with or
---------------------
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been established
unless and until any Lien resulting therefrom attaches to any of its property
and becomes enforceable against its creditors.
VII.5. Insurance. (a) Keep all of its insurable properties adequately
---------
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and otherwise as required by the Security Instruments, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) and against loss by reason by business interruption, such
policies of insurance to have such limits, deductibles, exclusions, co-insurance
and other provisions providing no less coverages than that specified in Schedule
--------
7.5, such insurance policies which insure the Collateral to be in form
- ---
reasonably satisfactory to the Administrative Agent. Each of the policies of
insurance described in this Section 7.5 insuring any of the Collateral shall
-----------
provide that the insurer shall give the Collateral Agent not less than thirty
(30) days' prior written notice before any such policy shall be terminated,
lapse or be altered in any manner.
VII.6. True Books. Keep true books of record and account in which
----------
full, true and correct entries will be made of all of its dealings and
transactions, and set up on its books such reserves as may be required by GAAP
with respect to doubtful accounts and all taxes, assessments, charges, levies
and claims and with respect to its business in general, and include such
reserves in interim as well as year-end financial statements.
VII.7. Right of Inspection. Permit any Person designated by any
-------------------
Lender or the Administrative Agent to visit and inspect any of the properties,
corporate books and financial reports of the Borrower or any Subsidiary and to
discuss its affairs, finances and accounts with its principal officers and
independent certified public accountants, all at reasonable times, at reasonable
intervals and with reasonable prior notice.
53
<PAGE>
VII.8. Observe all Laws. Conform to and duly observe in all material
----------------
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business.
VII.9. Governmental Licenses. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure would not
reasonably be expected to have a Material Adverse Effect.
VII.10. Covenants Extending to Other Persons. Cause each of its
------------------------------------
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 7.2 through 7.9, and 7.18
------------ --- ----
inclusive.
VII.11. Officer's Knowledge of Default. Upon either the Chief Executive
------------------------------
Officer, the Chief Financial Officer or Assistant Treasurer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary or other Credit Party to any
Lender, or any event, development or occurrence which would reasonably be
expected to have a Material Adverse Effect, cause such officer or an Authorized
Representative to promptly notify the Administrative Agent of the nature
thereof, the period of existence thereof, and what action the Borrower or such
Subsidiary or other Credit Party proposes to take with respect thereto.
VII.12. Suits or Other Proceedings. Upon either the Chief Executive
--------------------------
Officer, the Chief Financial Officer or Assistant Treasurer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or other Credit Party, or any attachment,
levy, execution or other process being instituted against any assets of the
Borrower or any Subsidiary or other Credit Party, making a claim or claims in an
aggregate amount greater than $10,000,000 not otherwise covered by insurance,
promptly deliver to the Administrative Agent written notice thereof stating the
nature and status of such litigation, dispute, proceeding, levy, execution or
other process.
VII.13. Notice of Environmental Complaint or Condition. Promptly provide to
----------------------------------------------
the Administrative Agent true, accurate and complete copies of any and all
notices, complaints, orders, directives, claims or citations received by the
Borrower or any Subsidiary relating to any (a) violation or alleged violation by
the Borrower or any Subsidiary of any applicable Environmental Law; (b) release
or threatened release by the Borrower or any Subsidiary, or by any Person
handling, transporting or disposing of any Hazardous Material on behalf of the
Borrower or any Subsidiary, or at any facility or property owned or leased or
operated by the Borrower or any Subsidiary, of any Hazardous Material, except
where occurring legally pursuant to a permit or license; or (c) liability or
alleged liability of the Borrower or any Subsidiary for the costs of cleaning
up, removing, remediating or responding to a release of Hazardous Materials.
VII.14. Environmental Compliance. If the Borrower or any Subsidiary shall
------------------------
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any
54
<PAGE>
Subsidiary has violated any Environmental Law, has released any Hazardous
Material, or is liable for the costs of cleaning up, removing, remediating or
responding to a release of Hazardous Materials, the Borrower and any Subsidiary
shall, within the time period permitted and to the extent required by the
applicable Environmental Law or the Governmental Authority responsible for
enforcing such Environmental Law, remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation or release or satisfy such
liability.
VII.15. Indemnification. Without limiting the generality of Section
--------------- -------
11.9, the Borrower hereby agrees to indemnify and hold the Administrative Agent
and the Lenders, and their respective officers, directors, employees and agents,
harmless from and against any and all claims, losses, penalties, liabilities,
damages and expenses (including assessment and cleanup costs and reasonable
attorneys', consultants' or other expert fees, expenses and disbursements)
arising directly or indirectly from, out of or by reason of (a) the violation of
any Environmental Law by the Borrower or any Subsidiary or with respect to any
property owned, operated or leased by the Borrower or any Subsidiary or (b) the
handling, storage, transportation, treatment, emission, release, discharge or
disposal of any Hazardous Materials by or on behalf of the Borrower or any
Subsidiary, or on or with respect to property owned or leased or operated by the
Borrower or any Subsidiary. The provisions of this Section 7.15 shall survive
------------
repayment of the Obligations or the Facility Termination Date and expiration or
termination of this Agreement.
VII.16. Further Assurances. At the Borrower's cost and expense, upon
------------------
request of the Administrative Agent, duly execute and deliver or cause to be
duly executed and delivered, to the Administrative Agent such further
instruments, documents, certificates, financing and continuation statements, and
do and cause to be done such further acts that may be reasonably necessary or
advisable in the reasonable opinion of the Administrative Agent to carry out
more effectively the provisions and purposes of this Agreement, the Security
Instruments and the other Loan Documents.
VII.17. Employee Benefit Plans.
----------------------
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Administrative Agent of (a) the
establishment of any new Pension Plan (which notice shall include a copy of
such plan), (b) the commencement of contributions to any Employee Benefit
Plan to which the Borrower or any of its ERISA Affiliates was not
previously contributing, (c) any material increase in the benefits of any
existing Employee Benefit Plan, (d) each funding waiver request filed with
respect to any Employee Benefit Plan and all communications received or
sent by the Borrower or any ERISA Affiliate with respect to such request
and (e) the failure of the Borrower or any ERISA Affiliate to make a
required installment or payment under Section 302 of ERISA or Section 412
of the Code exceeding in the aggregate $750,000 by the due date;
(b) Promptly and in any event within fifteen (15) days of becoming
aware of the occurrence or forthcoming occurrence of any (a) Termination
Event or (b) nonexempt "prohibited transaction," as such term is defined in
Section 406 of ERISA or Section 4975
55
<PAGE>
of the Code, in connection with any Pension Plan or any trust created
thereunder, deliver to the Administrative Agent a notice specifying the
nature thereof, what action the Borrower or any ERISA Affiliate has taken,
is taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Administrative Agent copies of (a) any unfavorable determination letter
from the Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code, (b) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (c) each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by the Borrower or any ERISA Affiliate with
the Internal Revenue Service with respect to each Pension Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA. The Borrower will
notify the Administrative Agent in writing within five (5) Business Days of
the Borrower or any ERISA Affiliate obtaining knowledge or reason to know
that the Borrower or any ERISA Affiliate has filed or intends to file a
notice of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA.
VII.18. Continued Operations. Continue at all times to conduct its
--------------------
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
VII.19. New Subsidiaries. Simultaneously with the acquisition or
----------------
creation of any Subsidiary, cause to be delivered to the Administrative Agent
each of the following:
(a) if such Subsidiary is a Domestic Subsidiary, a Facility
Guaranty executed by such Subsidiary substantially in the form of
Exhibit I;
---------
(b) an opinion of counsel to the Subsidiary dated as of the date
of delivery of the Facility Guaranty and addressed to the Administrative
Agent and the Lenders, in form and substance reasonably acceptable to the
Administrative Agent (which opinion may include assumptions and
qualifications of similar effect to those contained in the opinions of
counsel delivered pursuant to Section 5.1(a)), to the effect that:
--------------
(A) such Subsidiary is duly organized, validly existing and in
good standing in the jurisdiction of its formation, has the requisite
power and authority to own its properties and conduct its business as
then owned and then conducted and proposed to be conducted, and is
duly qualified to transact business and is in good standing as a
foreign corporation or partnership in each other jurisdiction in which
the character of the properties owned or leased, or the business
carried on
56
<PAGE>
by it, requires such qualification and the failure to be so qualified
would reasonably be likely to result in a Material Adverse Effect; and
(B) the execution, delivery and performance of the Facility
Guaranty to which such Subsidiary is a signatory have been duly
authorized by all requisite corporate or partnership action (including
any required shareholder or partner approval), such agreement has been
duly executed and delivered and constitutes the valid and binding
agreement of such Subsidiary, enforceable against such Subsidiary in
accordance with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or other similar
law affecting the enforceability of creditors' rights generally and to
the effect of general principles of equity (whether considered in a
proceeding at law or in equity);
(c) current copies of the charter documents, including partnership
agreements and certificate of limited partnership, if applicable, and
bylaws of such Subsidiary, minutes of duly called and conducted meetings
(or duly effected consent actions) of the board of directors, partners, or
appropriate committees thereof (and, if required by such charter documents,
bylaws or by applicable law, of the shareholders) of such Subsidiary
authorizing the actions and the execution and delivery of documents
described in this Section 7.19.
------------
7.20. Year 2000 Compliance. The Borrower will promptly notify the
--------------------
Administrative Agent and the Lenders in the event the Borrower discovers or
determines that any computer application (including those affected by
information received from its suppliers and vendors) that is material to its or
any of its Subsidiaries' business and operations will not be Year 2000 Compliant
on a timely basis, except to the extent that such failure could not reasonably
be expected to have a Material Adverse Effect.
57
<PAGE>
ARTICLE VIII
Negative Covenants
------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
VIII.1. Financial Covenants.
-------------------
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
---------------------------
Ratio as of the end of any Four-Quarter Period to be greater than 3.75 to 1.00.
(b) Consolidated Net Worth. Permit Consolidated Net Worth to
----------------------
$169,499,000, plus (ii) for each be less than the sum of (i)
----
fiscal quarter of the Borrower since June 30, 1999 to the most
recent fiscal quarter of the Borrower being reported, 50% of
Consolidated Net Income greater than -0-, plus (iii) (for purposes
----
of this Section 8.1(b) only, without duplication) 50% of any after
--------------
tax extraordinary gain, plus (iv) 75% of the Net Proceeds of any
----
Equity Offering.
(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
------------------------------------
Interest Coverage Ratio to be less than 2.75 to 1.00.
VIII.2. Acquisitions. Enter into any agreement, contract, binding
------------
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as one or more
line or lines of business conducted by the Borrower and its Subsidiaries, (ii)
no Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to such Acquisition and,
if the Cost of Acquisition is in excess of $25,000,000, the Borrower shall have
furnished to the Administrative Agent (A) pro forma historical financial
statements as of the end of the most recently completed Fiscal Year of the
Borrower and most recent interim fiscal quarter, if applicable giving effect to
such Acquisition and (B) a certificate in the form of Exhibit H prepared on a
---------
historical pro forma basis giving effect to such Acquisition, which certificate
shall demonstrate that no Default or Event of Default would exist immediately
after giving effect thereto, (iii) the Person acquired shall be a wholly-owned
Subsidiary, or be merged into the Borrower or a wholly-owned Subsidiary,
immediately upon consummation of the Acquisition (or if assets are being
acquired, the acquiror shall be the Borrower or a wholly-owned Subsidiary), and
(iv) if the Cost of Acquisition shall exceed $50,000,000, the Required Lenders
shall consent to such Acquisition in their discretion;
8.3. Capital Expenditures. Make or become committed to make Capital
--------------------
Expenditures, which exceed in the aggregate in any Fiscal Year of the Borrower
$35,000,000 (on a limited cumulative basis, with the effect that amounts up to
$7,500,000 not expended in any Fiscal Year may be carried forward to subsequent
Fiscal Years; provided however, Capital Expenditures in
58
<PAGE>
any Fiscal Year, inclusive of amounts carried forward from previous Fiscal
Years, shall in no event exceed $50,000,000); provided, however, that the
-------- -------
Borrower may carry forward to Fiscal Year 2000 up to $7,500,000 not utilized in
Fiscal Year 1999.
8.4. Liens. Incur, create or permit to exist any Lien, charge or other
-----
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than
(a) Liens created under the Security Instruments in favor of the
Administrative Agent and the Lenders, and Liens otherwise existing as of
the date hereof and as set forth in Schedule 6.7;
------------
(b) Liens imposed by law for taxes, assessments or charges of any
Governmental Authority for claims not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted, and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP and which Liens are not yet
enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law or created in the
ordinary course of business and (i) in existence less than 90 days from the
date of creation thereof for amounts not yet due or (ii) which are being
contested in good faith by appropriate proceedings diligently conducted,
and with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with GAAP and which Liens are not yet
enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary course of business
(including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other
types of social security benefits or to secure the performance of tenders,
bids, leases, contracts (other than for the repayment of Indebtedness),
statutory obligations and other similar obligations or arising as a result
of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and utility
agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere materially
with the ordinary conduct of the business of the Borrower or any
Subsidiary;
(f) Liens on fixed assets of the Borrower and its Subsidiaries other
than the Collateral securing Indebtedness permitted under Section 8.5(g),
--------------
provided the amount of such Indebtedness so secured does not exceed at any
time ten percent (10%) of Consolidated Tangible Assets, and provided
further that, with respect to purchase money Indebtedness and Capital
Leases, the amount of such Indebtedness represents not less than
59
<PAGE>
75% of the aggregate book value of the fixed assets securing such
Indebtedness and no property other than the assets purchased secures such
Indebtedness;
(g) Subject to Section 9.1(i), Liens arising by reason of any
--------------
judgment, decree or order of any court, to the extent that such judgment,
decree or order is adequately bonded, or such judgment, decree or order is
covered by insurance as to which the insurance company has not disclaimed
or disputed in writing its obligations for coverage, or appropriate legal
proceedings have been duly initiated for the review of such judgment,
decree or order and such proceedings have not been formally terminated, or
the period within which such proceedings may be initiated has not expired;
or
(h) Liens securing refinancing, extensions or renewals of Indebtedness
or obligations secured by Liens permitted in clauses (a) through (f) above;
provided that (x) the amount of any such extended, renewed or refinancing
--------
Indebtedness or obligation is not increased, (y) such extended, renewed or
refinancing Indebtedness or obligation is on terms and conditions no more
restrictive than the terms and conditions of the Indebtedness or
obligations being extended or renewed and (z) such Liens cover only
property or assets theretofore subject thereto (and for purposes of this
clause (i) "refinancing" Indebtedness shall have the meaning provided in
Section 8.5(a)).
---------------
8.5. Indebtedness. Incur, create, assume or permit to exist any
------------
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth in
Schedule 6.6 and any refinancing of such Indebtedness; provided, that the
------------- --------
aggregate principal amount of such refinancing Indebtedness is not
increased and such refinancing is on terms and conditions no more
restrictive than the terms and conditions of the Indebtedness being
refinanced (and for purposes hereof a "refinancing" Indebtedness shall
include Indebtedness incurred to refinance prior Indebtedness within 90
days after the refinanced Indebtedness is repaid);
(b) Indebtedness owing to the Administrative Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) Indebtedness arising from Rate Hedging Obligations permitted under
Section 8.16;
------------
(e) Guaranties of the Borrower or any Guarantor in respect of
Indebtedness permitted to be incurred under this Section 8.5;
-----------
60
<PAGE>
(f) Without limitation on the provisions of Section 8.5(a) but without
--------------
duplication of Section 8.9(b), the Borrower may refinance or otherwise
--------------
restructure the $15,000,000 outstanding balance of the Subordinated
Intercompany Note (including without limitation by assuming another
obligation as a result of the merger of FLS into the Borrower or by
directly entering into a new obligation in replacement of the Subordinated
Intercompany Note), provided that the Indebtedness resulting from such
refinancing or restructuring is subordinate to the Notes and includes
scheduled principal payments not exceeding $3,500,000 in any Fiscal Year;
and
(g) additional Indebtedness not otherwise covered by clauses (a)
through (f) above, provided that the aggregate outstanding principal amount
of all such other Indebtedness permitted under this clause (h) shall in no
event exceed twenty percent (20%) of Consolidated Tangible Assets at any
time.
8.6. Transfer of Assets. Sell, lease, transfer or otherwise dispose of
------------------
any assets of Borrower or any Subsidiary other than (a) dispositions of
inventory in the ordinary course of business, (b) dispositions of property that
is substantially worn, damaged, obsolete or, in the judgment of the Borrower, no
longer best used or useful in its business or that of any Subsidiary (including,
but not limited to up to $13,618,000 identified as assets held for sale on the
Borrower's consolidated balance sheet as of March 31, 1999), (c) transfers of
assets necessary to give effect to merger or consolidation transactions
permitted by Section 8.8, (d) the disposition of Eligible Securities in the
-----------
ordinary course of management of the investment portfolio of the Borrower and
its Subsidiaries, (e) sales and other transfers of assets from the Borrower to a
Guarantor and vice versa (including without limitation the sale or other
transfer of receivables between the Borrower and AFI); provided that in no event
may the Borrower transfer any asset which would constitute Collateral upon the
occurrence of a Security Event; (f) the sale or other disposition of all or any
substantial part of the Atlas division of the Borrower; (g) the sale or other
disposition of assets up to $10,000,000 in any Fiscal Year to the extent that
the net proceeds thereof are reinvested in the business of the Borrower or any
Guarantor within twelve months thereafter; and (h) other dispositions in any one
Fiscal Year at fair market value of assets that do not constitute Collateral
having a book or market value (whichever is higher) not exceeding $5,000,000.
8.7. Investments. Purchase, own, invest in or otherwise acquire,
-----------
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition permitted
hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set forth in
Schedule 6.4;
------------
61
<PAGE>
(d) accounts receivable arising and trade credit granted in the
ordinary course of business and any securities received in satisfaction or
partial satisfaction thereof in connection with accounts of financially
troubled Persons to the extent reasonably necessary in order to prevent or
limit loss;
(e) investments in Subsidiaries which are Guarantors;
(f) other loans, advances and investments made in the ordinary course
of business in an aggregate principal amount at any time outstanding not to
exceed $5,000,000;
(g) loans to officers, directors and employees of the Borrower or any
Subsidiary not exceeding in an aggregate principal amount at any time
outstanding not to exceed $1,000,000;
(h) promissory notes received as a result of a sale or other
disposition of an asset permitted under Section 8.6; and
-----------
(i) additional Investments not otherwise covered by clauses (a)
through (h) above, provided that the aggregate amount of such Investments
permitted under this clause (i) shall not exceed ten percent (10%) of
Consolidated Net Worth.
8.8. Merger or Consolidation. (a) Consolidate with or merge into any
-----------------------
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of all or a substantial part of its
assets (other than sales and other transfers permitted under Section 8.6);
-----------
provided, however, (i) any Subsidiary of the Borrower may merge or transfer all
- -------- -------
or substantially all of its assets into or consolidate with the Borrower or any
wholly-owned Subsidiary of the Borrower, (ii) the Borrower may merge FLS into
the Borrower, and (iii) any other Person may merge into or consolidate with the
Borrower or any wholly-owned Domestic Subsidiary and any Subsidiary may merge
into or consolidate with any other Person in order to consummate an Acquisition
permitted by Section 8.2, provided further, that any resulting or surviving
----------- ----------------
entity shall execute and deliver such agreements and other documents, including
a Facility Guaranty, and take such other action as the Administrative Agent may
require to evidence or confirm its express assumption of the obligations and
liabilities of its predecessor entities under the Loan Documents.
8.9. Restricted Payments. Make any Restricted Payment or apply or set
-------------------
apart any of their assets therefor or agree to do any of the foregoing;
provided, however, the Borrower may make the following Restricted Payments in
- --------
any Fiscal Year (on a non-cumulative basis, with the effect that amounts not
paid in any Fiscal Year may not be carried over for payment in a subsequent
period) if immediately prior to and immediately after giving effect thereto no
Default or Event of Default shall exist or occur and be continuing:
62
<PAGE>
(a) cash payments or dividends to or on behalf of FLS for (i)
reimbursement of tax obligations not otherwise paid by the Borrower, and
(ii) holding company expenses not to exceed $100,000;
(b) without duplication of Section 8.5(f), the refinancing or other
--------------
restructuring of up to $15,000,000 of the principal amount of the
Subordinated Intercompany Note; provided, however, that any Indebtedness
resulting from such refinancing or restructuring (i) is subordinate to the
Obligations under subordination terms substantially similar to those
contained in the Subordinated Intercompany Note, (ii) is in an aggregate
principal amount not greater than the amount being refinanced or
restructured, and (iii) includes scheduled principal payments in an amount
not to exceed $3,500,000 in any Fiscal Year;
(c) sales and other transfers of assets from the Borrower or a
Guarantor to the Borrower or a Guarantor (including without limitation the
sale or other transfer of receivables between the Borrower and AFI);
provided that in no event may the Borrower transfer any asset which would
constitute Collateral upon the occurrence of a Security Event; and
(d) other Restricted Payments not otherwise covered by clauses (a)
through (c) above made after the Closing Date not in excess of the sum of
(i) fifty percent (50%) of the Consolidated Net Income during the period
(taken as one accounting period) from the first day of the Borrower's
fiscal quarter ending on June 30, 1998 to the last day of the Borrower's
most recently ended fiscal quarter for which internal financial statements
are available at the time of such proposed Restricted Payment (or, if such
aggregate Consolidated Net Income is a loss, minus 100% of such amount);
(ii) twenty-five percent (25%) of the aggregate Net Proceeds received by
the Borrower after the Closing Date from any Equity Offering; and (iii)
$10,000,000.
8.10. Transactions with Affiliates. Other than transactions permitted
----------------------------
under Sections 8.7, 8.8 and 8.9, enter into any transaction after the Closing
------------ --- ---
Date, including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Borrower or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Borrower or
such Subsidiary and (c) that the Borrower may purchase, sell, exchange or lease
property to or from an Affiliate upon fair and reasonable terms no less
favorable to the Borrower (or any Subsidiary) than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate.
8.11. Compliance with ERISA. With respect to any Pension Plan, Employee
---------------------
Benefit Plan or Multiemployer Plan:
63
<PAGE>
(a) permit the occurrence of any Termination Event which would result
in a liability on the part of the Borrower or any ERISA Affiliate to the
PBGC exceeding $1,000,000; or
(b) except to the extent permitted under ERISA, permit the present
value of all benefit liabilities under all Pension Plans to exceed the
current value of the assets of such Pension Plans allocable to such benefit
liabilities; or
(c) permit any accumulated funding deficiency (as defined in Section
302 of ERISA and Section 412 of the Code) with respect to any Pension Plan,
whether or not waived; or
(d) fail to make any contribution or payment to any Multiemployer Plan
which the Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining
thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to engage,
in any prohibited transaction under Section 406 of ERISA or Sections 4975
of the Code for which a civil penalty pursuant to Section 502(I) of ERISA
or a tax pursuant to Section 4975 of the Code is reasonably likely to be
imposed exceeding in the aggregate $1,000,000 for which a statutory or
class exemption is not available or a private exemption has not been
obtained; or
(f) permit the establishment of any Employee Benefit Plan providing
post-retirement welfare benefits or establish or amend any Employee Benefit
Plan which establishment or amendment could result in material additional
liability to the Borrower or any ERISA Affiliate or materially increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer Plan;
or
(g) fail, or permit the Borrower or any ERISA Affiliate to fail, to
establish, maintain and operate each Employee Benefit Plan in compliance in
all material respects with the provisions of ERISA, the Code, all
applicable Foreign Benefit Laws and all other applicable laws and the
regulations and interpretations thereof.
8.12. Fiscal Year. Change its Fiscal Year.
-----------
8.13. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
----------------
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 8.8.
-----------
8.14. Limitations on Sales and Leasebacks. Enter into any arrangement
-----------------------------------
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property, whether now owned or hereafter acquired in a related
transaction or series of related transactions, which has been or is to be sold
or transferred by the Borrower or any Subsidiary to such Person or to
64
<PAGE>
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or any
Subsidiary if, after giving effect thereto, the aggregate outstanding amount of
all such transactions then in effect would exceed $25,000,000.
8.15. Change in Control. Cause, suffer or permit to exist or occur any
-----------------
Change of Control.
8.16. Rate Hedging Obligations. Incur any Rate Hedging Obligations or
------------------------
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except to the extent permitted under the Existing Credit
Agreement.
8.17. Negative Pledge Clauses. Except with respect to the Existing
-----------------------
Credit Agreement, enter into or cause, suffer or permit to exist any agreement
with any Person other than the Administrative Agent and the Lenders pursuant to
this Agreement or any other Loan Documents which prohibits or limits the ability
of any of the Borrower or any Subsidiary to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, provided that the Borrower and any Subsidiary may enter
--------
into such an agreement in connection with property acquired with the proceeds of
purchase money Indebtedness and Capital Leases to the extent permitted hereunder
when such prohibition or limitation is by its terms effective only against the
assets subject to such Lien.
8.18. Prepayments, Etc. of Indebtedness.
---------------------------------
(a) Other than the refinancing or restructuring permitted under
Section 8.5, prepay, redeem, purchase, defease or otherwise satisfy prior
-----------
to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Indebtedness subordinate to
the Obligations; or
(b) amend, modify or change in any manner any term or condition of any
Indebtedness described in Section 8.5(a) so that the terms and conditions
--------------
thereof are less favorable to the Administrative Agent and the Lenders than
the terms of such Indebtedness as of the Closing Date.
8.19. Mortgage Property. Permit at any time the appraised value of the
-----------------
Mortgage Property plus the equipment located thereon to be less than
$100,000,000.
65
<PAGE>
ARTICLE IX
Events of Default and Acceleration
----------------------------------
IX.1. Events of Default. If any one or more of the following events
-----------------
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan or other Obligation, when and as the same shall be
due and payable whether pursuant to any provision of Article II, at
----------
maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any
amount of interest on any Loan or other Obligation or of any fees or other
amounts payable to any of the Lenders or the Administrative Agent on the
date within three (3) Business Days on which the same shall be due and
payable; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Section 7.7, 7.11, 7.19 or Article VIII;
----------- ---- ---- ------------
(d) if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in this
Agreement or the Notes (other than as described in clauses (a), (b) or (c)
above) and such default shall continue for 30 or more days after the
earlier of receipt of notice of such default by the Authorized
Representative from the Administrative Agent or an officer of the Borrower
becomes aware of such default, or if a default shall be made in the
performance or observance of, or shall occur under, any covenant, agreement
or provision contained in any of the other Loan Documents (beyond any
applicable grace period, if any, contained therein) or in any instrument or
document evidencing or creating any obligation, guaranty, or Lien in favor
of the Administrative Agent or any of the Lenders or delivered to the
Administrative Agent or any of the Lenders in connection with or pursuant
to this Agreement or any of the Obligations, or if any Loan Document ceases
to be in full force and effect (other than by reason of any action by the
Administrative Agent), or if without the written consent of the Lenders,
this Agreement or any other Loan Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or unenforceable
for any reason whatsoever (other than in accordance with its terms in the
absence of default or by reason of any action by the Lenders or the
Administrative Agent); or
(e) if there shall occur (i) a default, which is not waived, in the
payment of any principal, interest, premium or other amount with respect to
any Indebtedness (other than the Loans and other Obligations) of the
Borrower or any Subsidiary in an amount not less
66
<PAGE>
than $1,000,000 in the aggregate outstanding, or (ii) a default, which is
not waived, in the performance, observance or fulfillment of any term or
covenant contained in any agreement or instrument under or pursuant to
which any such Indebtedness may have been issued, created, assumed,
guaranteed or secured by the Borrower or any Subsidiary, or (iii) any other
event of default as specified in any agreement or instrument under or
pursuant to which any such Indebtedness may have been issued, created,
assumed, guaranteed or secured by the Borrower or any Subsidiary, and such
default or event of default shall continue for more than the period of
grace, if any, therein specified, or such default or event of default shall
permit the holder of any such Indebtedness (or any agent or trustee acting
on behalf of one or more holders) to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report or
statement at any time furnished to the Administrative Agent or any Lender
by or on behalf of the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary or other Credit Party shall be
unable to pay its debts generally as they become due; file a petition to
take advantage of any insolvency statute; make an assignment for the
benefit of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole or
any substantial part of its property; file a petition or answer seeking
liquidation, reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee, liquidator or
conservator of the Borrower or any Subsidiary or other Credit Party or of
the whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of sixty
(60) days; or if, under the provisions of any other law for the relief or
aid of debtors, a court of competent jurisdiction shall assume custody or
control of the Borrower or any Subsidiary or other Credit Party or of the
whole or any substantial part of its properties, which control is not
relinquished within sixty (60) days; or if there is commenced against the
Borrower or any Subsidiary or other Credit Party any proceeding or petition
seeking reorganization, arrangement, liquidation or similar relief under
the federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any
Subsidiary or other Credit Party takes any action to indicate its consent
to or approval of any such proceeding or petition; or
(i) if (i) one or more judgments or orders where the amount not
covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $1,000,000 is rendered against the Borrower or
any Subsidiary, or (ii) there is any attachment, injunction or execution
against any of the Borrower's or Subsidiaries'
67
<PAGE>
properties for any amount in excess of $1,000,000 in the aggregate; and
such judgment, attachment, injunction or execution remains unpaid,
unstayed, undischarged, unbonded or undismissed for a period of thirty (30)
days; or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend all
or any part of its operations material to the conduct of the business of
the Borrower or such Subsidiary for a period of more than 60 days;
(k) if there shall occur and not be waived an Event of Default as
defined in any of the other Loan Documents; or
(l) if, other than as permitted in Section 8.4(b) through (e) and
------------------------------
8.6(b), the Borrower shall cease to own the Collateral free and clear of
------
any Lien other than the Lien in favor of the Administrative Agent, for the
benefit of the Lenders;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: (i)
the Administrative Agent, with the consent of the Required Lenders,
may, and at the direction of the Required Lenders shall, declare any
obligation of the Lenders to make further 364 Day Loans terminated,
whereupon the obligation of each Lender to make further 364 Day Loans
hereunder shall terminate immediately, and (ii) the Administrative
Agent shall at the direction of the Required Lenders, at their option,
declare by notice to the Borrower any or all of the Obligations to be
immediately due and payable, and the same, including all interest
accrued thereon and all other obligations of the Borrower to the
Administrative Agent and the Lenders, shall forthwith become
immediately due and payable without presentment, demand, protest,
notice or other formality of any kind, all of which are hereby
expressly waived, anything contained herein or in any instrument
evidencing the Obligations to the contrary notwithstanding; provided,
--------
however, that notwithstanding the above, if there shall occur an Event
of Default under clause (g) or (h) above, then the obligation of the
Lenders to make 364 Day Loans hereunder shall automatically terminate
and any and all of the Obligations shall be immediately due and
payable without the necessity of any action by the Administrative
Agent or the Required Lenders or notice to the Administrative Agent or
the Lenders; and
(B) the Administrative Agent and each of the Lenders shall have
all of the rights and remedies available under the Loan Documents or
under any applicable law.
68
<PAGE>
IX.2. Administrative Agent to Act. In case any one or more Events of
---------------------------
Default shall occur and not have been waived, the Administrative Agent may, with
the consent of the Required Lenders, and at the direction of the Required
Lenders shall, proceed to protect and enforce their rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
IX.3. Cumulative Rights. No right or remedy herein conferred upon the
-----------------
Lenders or the Administrative Agent is intended to be exclusive of any other
rights or remedies contained herein or in any other Loan Document, and every
such right or remedy shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or hereafter existing
at law or in equity or by statute, or otherwise.
IX.4. No Waiver. No course of dealing between the Borrower and any
---------
Lender or the Administrative Agent or any failure or delay on the part of any
Lender or the Administrative Agent in exercising any rights or remedies under
any Loan Document or otherwise available to it shall operate as a waiver of any
rights or remedies and no single or partial exercise of any rights or remedies
shall operate as a waiver or preclude the exercise of any other rights or
remedies hereunder or of the same right or remedy on a future occasion.
IX.5. Allocation of Proceeds. If an Event of Default has occurred and
----------------------
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Administrative Agent hereunder,
- ----------
in respect of any principal of or interest on the Obligations or any other
amounts payable by the Borrower hereunder, shall be applied by the
Administrative Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 2.10 and 11.5;
----------------------
(b) amounts due to the Administrative Agent pursuant to Section 10.8;
------------
(c) payments of interest on Loans to be applied for the ratable
benefit of the Lenders;
(d) payments of principal of Loans, to be applied for the ratable
benefit of the Lenders;
(e) amounts due to the Lenders pursuant to Sections 7.15 and 11.9;
------------- ----
(f) payments of all other amounts due under any of the Loan Documents,
if any, to be applied for the ratable benefit of the Lenders; and
(g) any surplus remaining after application as provided for herein, to
the Borrower or otherwise as may be required by applicable law.
69
<PAGE>
ARTICLE X
The Administrative Agent
------------------------
X.1. Appointment, Powers, and Immunities. Each Lender hereby
-----------------------------------
irrevocably appoints and authorizes the Administrative Agent to act as its
administrative agent under this Agreement and the other Loan Documents with such
powers and discretion as are specifically delegated to the Administrative Agent
by the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. The Administrative Agent
(which terms as used in this sentence and in Section 10.5 and the first sentence
------------
of Section 10.6 hereof shall include the Administrative Agent's affiliates and
------------
their own and their affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made in or
in connection with any Loan Document or any certificate or other document
referred to or provided for in, or received by any of them under, any Loan
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Loan Document, or any other document
referred to or provided for therein or for any failure by any Credit Party
or any other Person to perform any of its obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain,
inquire into, or verify the performance or observance of any covenants or
agreements by any Credit Party or the satisfaction of any condition or to
inspect the property (including the books and records) of any Credit Party
or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted to be
taken by it under or in connection with any Loan Document, except for its
own gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or attorneys-
in-fact selected by them with reasonable care.
X.2. Reliance by Administrative Agent. The Administrative Agent shall
--------------------------------
be entitled to rely upon any certification, notice, instrument, writing, or
other communication (including, without limitation, any thereof by telephone or
telefacsimile) believed by it to be genuine and correct and to have been signed,
sent or made by or on behalf of the proper Person or Persons,
70
<PAGE>
and upon advice and statements of legal counsel (including counsel for any
Credit Party), independent accountants, and other experts selected by them. The
Administrative Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until the Administrative Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 11.1 hereof. As to any matters not expressly provided for by this
- ------------
Agreement, the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding on all of the Lenders; provided, however, that the Administrative Agent
-------- -------
shall not be required to take any action that exposes it to personal liability
or that is contrary to any Loan Document or applicable law or unless it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking any such
action.
X.3. Defaults. The Administrative Agent shall not be deemed to have
--------
knowledge or notice of the occurrence of a Default or Event of Default (other
than a payment default) unless the Administrative Agent has received written
notice from a Lender or the Borrower specifying such Default or Event of Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default or
Event of Default, the Administrative Agent shall give prompt notice thereof to
the Lenders. The Administrative Agent shall (subject to Section 10.2 hereof)
------------
take such action with respect to such Default or Event of Default as shall
reasonably be directed by the Required Lenders, provided that, unless and until
-------- ----
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as the
Administrative Agent shall deem advisable in the best interest of the Lenders.
X.4. Rights as Lender. With respect to its 364 Day Commitment and the
----------------
Loans made by it, the Administrative Agent (and any successor acting as
Administrative Agent) in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though they were not acting as the Administrative Agent and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent (and
any successor acting as Administrative Agent) and its affiliates may (without
having to account therefor to any Lender) accept deposits from, lend money to,
make investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Credit Party or any of its
Subsidiaries or affiliates as if it were not acting as Administrative Agent, and
the Administrative Agent (and any successor acting as Administrative Agent) and
its affiliates may accept fees and other consideration from any Credit Party or
any of its Subsidiaries or affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
X.5. Indemnification. The Lenders agree to indemnify the Administrative
---------------
Agent (to the extent not reimbursed under Section 11.9 hereof, but without
------------
limiting the obligations of the
71
<PAGE>
Borrower under such Section) ratably in accordance with their respective 364 Day
Commitments, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including attorneys'
fees), or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent (including by any
Lender) in any way relating to or arising out of any Loan Document or the
transactions contemplated thereby or any action taken or omitted by the
Administrative Agent under any Loan Document; provided that no Lender shall be
--------
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any costs or expenses
payable by the Borrower under Section 11.5, to the extent that the
------------
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrower. The agreements contained in this Section 10.5 shall survive
------------
payment in full of the Loans and all other amounts payable under this Agreement.
X.6. Non-Reliance on Administrative Agent and Other Lenders. Each
------------------------------------------------------
Lender agrees that it has, independently and without reliance on the
Administrative Agent, BAS or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Loan Parties and their Subsidiaries and decision to enter into this Agreement
and that it will, independently and without reliance upon the Administrative
Agent, BAS or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or any of its Subsidiaries or
affiliates that may come into the possession of the Administrative Agent or any
of its affiliates.
X.7. Resignation of Administrative Agent. The Administrative Agent may
-----------------------------------
resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent with the consent of the Borrower (provided that
there is not then a Default or Event of Default), which consent will not be
unreasonably withheld. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America having
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent the provisions of this Article X shall
---------
continue in effect for its benefit in
72
<PAGE>
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
X.8. Fees. The Borrower agrees to pay to the Administrative Agent, for
----
its individual account, an annual Administrative Agent's fee as from time to
time agreed to by the Borrower and Administrative Agent in writing.
73
<PAGE>
ARTICLE XI
Miscellaneous
-------------
XI.1. Assignments and Participations. (a) Each Lender may assign to
------------------------------
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Loans, its Note, and its 364 Day Commitment); provided, however, that
-------- -------
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, any
such partial assignment shall be in an amount at least equal to $5,000,000 or an
integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations under this
Agreement and the Note; and
(iv) the parties to such assignment shall execute and deliver to the
Administrative Agent for its acceptance an Assignment and Acceptance in the form
of Exhibit B hereto, together with any Note subject to such assignment and a
---------
processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the assignee. If
the assignee is not incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Borrower and the Administrative
Agent certification as to exemption from deduction or withholding of Taxes in
accordance with Section 4.6.
-----------
(b) The Administrative Agent shall maintain at its address referred to in
Section 11.2 a copy of each Assignment and Acceptance delivered to and accepted
- ------------
by it and a register for the recordation of the names and addresses of the
Lenders and the 364 Day Commitment of, and principal amount of the Loans owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
74
<PAGE>
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
---------
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(d) Each Lender may sell participations to one or more Persons in all or a
portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its 364 Day Commitment or its Loans);
provided, however, that (i) such Lender's obligations under this Agreement
- -------- -------
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection provisions
contained in Article IV and the right of set-off contained in Section 11.3, and
---------- ------------
(iv) the Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to its Loans and its Note and to approve any amendment,
modification, or waiver of any provision of this Agreement (other than
amendments, modifications, or waivers decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its 364 Day Commitment).
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time assign and pledge all or any portion of its Loans and its
Note to any Federal Reserve Bank as collateral security pursuant to Regulation A
and any Operating Circular issued by such Federal Reserve Bank. No such
assignment shall release the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).
XI.2. Notices. Any notice shall be conclusively deemed to have been
-------
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such address, telefacsimile
number or telex number as may from time to time be specified by such party in
written notice to the other parties hereto or otherwise received), in the case
of notice by telegram, telefacsimile or telex, respectively (where the receipt
of such message is verified by return), or (iii) on the fifth Business Day after
the day on which mailed, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address, telex number or telefacsimile number, as appropriate,
set forth below or such other address or number as such party shall specify by
notice hereunder:
75
<PAGE>
(a) if to the Borrower:
AMERISTEEL CORPORATION
5100 West Lemon Street, Suite 312
Tampa, Florida 33609
Attn: Chief Financial Officer
Telephone: (813) 207-2300
Telefacsimile: (813) 207-2328
(b) if to the Administrative Agent:
Bank of America, N.A.
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Agency Services, Tonya Parker
Telephone: (214) 209-2138
Telefacsimile: (214) 209-2515
with a copy to:
Bank of America, N.A.
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Thomas Blake
Telephone: (214) 209-0193
Telefacsimile: (214) 209-0980
(c) if to the Lenders:
At the addresses set forth on the signature pages hereof and on
the signature page of each Assignment and Acceptance; and
(d) if to any other Credit Party, at the address set forth on the
signature page of the Facility Guaranty or Security Instrument
executed by such Credit Party, as the case may be.
XI.3. Right of Set-off; Adjustments. (a) Upon the occurrence and during
-----------------------------
the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter
76
<PAGE>
existing under this Agreement and the Note held by such Lender, irrespective of
whether such Lender shall have made any demand under this Agreement or such Note
and although such obligations may be unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
- -------- -------
validity of such set-off and application. The rights of each Lender under this
Section 11.3 are in addition to other rights and remedies (including, without
- ------------
limitation, other rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by set-
off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
-------- -------
benefits is thereafter recovered from such benefitted Lender or thereafter is
repaid in good faith settlement of a pending or threatened avoidance claim, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that any
Lender so purchasing a participation from a Lender pursuant to this Section 11.3
------------
may, to the fullest extent permitted by law, exercise all of its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the amount
of such participation.
XI.4. Survival. All covenants, agreements, representations and
--------
warranties made herein shall survive the making by the Lenders of the Loans and
the execution and delivery to the Lenders of this Agreement and the Notes and
shall continue in full force and effect so long as any of Obligations remain
outstanding or any Lender has any Eurodollar Rate Loan hereunder or the Borrower
has continuing obligations hereunder unless otherwise provided herein. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and permitted assigns of such party and all
covenants, provisions and agreements by or on behalf of the Borrower which are
contained in the Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
XI.5. Expenses. The Borrower agrees to pay on demand all reasonable
--------
costs and expenses of the Administrative Agent in connection with the
syndication, preparation, execution, delivery, administration, modification, and
amendment of this Agreement, the other Loan Documents, and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and expenses of counsel for the Administrative Agent (excluding the cost of
internal counsel) with respect thereto and with respect to advising the
Administrative Agent as to its rights and responsibilities under the Loan
Documents. The Borrower further agrees to pay on demand all costs and expenses
of the Administrative Agent and the Lenders, if any (including, without
77
<PAGE>
limitation, reasonable attorneys' fees and expenses but excluding the cost of
internal counsel), in connection with the restructuring, workout or enforcement
(whether through negotiations, legal proceedings, or otherwise) of the Loan
Documents and the other documents to be delivered hereunder.
XI.6. Amendments and Waivers. Any provision of this Agreement or any
----------------------
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article X or the rights or duties of the Administrative Agent are
---------
affected thereby, by the Administrative Agent); provided that no such amendment
--------
or waiver shall, unless signed by all the Lenders, (i) increase the 364 Day
Commitment of any Lender or the Total 364 Day Credit Commitment of the Lenders,
(ii) reduce the principal of or rate of interest on any Loan or any fees or
other amounts payable hereunder, (iii) postpone any date fixed for the payment
of any principal of or interest on any Loan or any fees or other amounts payable
hereunder or for termination of any 364 Day Commitment, (iv) change the
percentage of the 364 Day Commitment or of the unpaid principal amount of the
Notes, or the number of Lenders, which shall be required for the Lenders or any
of them to take any action under this Section 11.6 or any other provision of
------------
this Agreement, (v) release any Guarantor or, other than in connection with a
transaction permitted under Section 8.6, all or a material part of the
-----------
Collateral, (vi) change any provision of this Agreement or the other Loan
Documents relating to the pro rata treatment of Lenders or (vii) amend this
Section 11.6 or Section 3.1.
- ------------ -----------
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Administrative Agent's part in exercising any
right, remedy or option shall operate as a waiver of such or any other right,
remedy or option or of any Default or Event of Default.
XI.7. Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such fully-
executed counterpart. Signatures on communications and other documents may be
transmitted by facsimile only with the consent of the Administrative Agent in
its sole and absolute discretion in each instance. The effectiveness of any
such signatures accepted by the Administrative Agent shall, subject to
applicable law, have the same force and effect as manual signatures and shall be
binding on all parties. The Administrative Agent may also require that any such
signature be confirmed by a manually-signed hardcopy thereof. Each party hereto
hereby adopts as an original executed signature page each signature page
hereafter furnished by such party to the Administrative Agent (or an agent of
the Administrative Agent) bearing (with the consent of the Administrative Agent)
a facsimile signature by or on behalf of such party. Nothing contained in this
Section shall limit the provisions of Section 10.2.
------------
XI.8. Termination. The termination of this Agreement shall not affect
-----------
any rights of the Borrower, the
78
<PAGE>
Lenders or the Administrative Agent or any obligation of the Borrower, the
Lenders or the Administrative Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Administrative Agent for the
benefit of the Lenders under the Loan Documents shall continue in full force and
effect, notwithstanding the termination of this Agreement, until all of the
Obligations have been paid in full after the termination hereof (other than
Obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable, which shall continue) or the Borrower has
furnished the Lenders and the Administrative Agent with an indemnification
satisfactory to the Administrative Agent and each Lender with respect thereto.
All representations, warranties, covenants, waivers and agreements contained
herein shall survive termination hereof until payment in full of the Obligations
unless otherwise provided herein. Notwithstanding the foregoing, if after
receipt of any payment of all or any part of the Obligations, any Lender is for
any reason compelled to surrender or in good faith settlement of a pending or
threatened avoidance claim voluntarily surrenders, such payment to any Person
because such payment is determined to be void or voidable as a preference,
impermissible setoff, a diversion of trust funds or for any other reason, this
Agreement shall continue in full force and the Borrower shall be liable to, and
shall indemnify and hold the Administrative Agent or such Lender harmless for,
the amount of such payment surrendered until the Administrative Agent or such
Lender shall have been finally and irrevocably paid in full. The provisions of
the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Administrative Agent or the
Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Administrative Agent's or the Lenders' rights
under this Agreement and shall be deemed to have been conditioned upon such
payment having become final and irrevocable.
XI.9. Indemnification; Limitation of Liability. (a) The Borrower
----------------------------------------
agrees to indemnify and hold harmless the Administrative Agent, BAS, and each
Lender and each of their affiliates and their respective officers, directors,
employees, agents, and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees) that may be incurred
by or asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans,
except to the extent such claim, damage, loss, liability, cost, or expense is
found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 11.9 applies, such indemnity shall be
------------
effective whether or not such investigation, litigation or proceeding is brought
by the Borrower, its directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated. The
Borrower agrees that no Indemnified Party shall have
79
<PAGE>
any liability (whether direct or indirect, in contract or tort or otherwise) to
it, any of its Subsidiaries, any Guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions
contemplated herein, except to the extent that such liability is found in a
final non-appealable judgment by a court of competent jurisdiction to have
directly resulted from such Indemnified Party's gross negligence or willful
misconduct. The Borrower agrees not to assert any claim against the
Administrative Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers, on
any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 11.9 shall survive the payment in full of the Loans and all other
----
amounts payable under this Agreement.
XI.10. Severability. If any provision of this Agreement or the other
------------
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
XI.11. Entire Agreement. This Agreement, together with the other Loan
----------------
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, Eurodollar Rate Loans and other communications between or among
the parties, both oral and written, with respect thereto.
XI.12. Agreement Controls. In the event that any term of any of the
------------------
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
XI.13. Usury Savings Clause. Notwithstanding any other provision
--------------------
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Administrative Agent an amount equal to the difference
between the amount of interest paid and the amount of interest which would have
been paid if the Highest Lawful Rate had at all
80
<PAGE>
times been in effect. Notwithstanding the foregoing, it is the intention of the
Lenders and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be canceled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to the Borrower. As used in this paragraph, the term "Highest
Lawful Rate" means the maximum lawful interest rate, if any, that at any time or
from time to time may be contracted for, charged, or received under the laws
applicable to such Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow.
XI.14. Payments. All principal, interest, and other amounts to be paid
--------
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Administrative Agent at the Principal Office in Dollars and in
immediately available funds, without setoff, recoupment, deduction or
counterclaim. Subject to the definition of "Interest Period" herein, whenever
any payment under this Agreement or any other Loan Document shall be stated to
be due on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time in such case shall be
included in the computation of interest and fees, as applicable, and as the case
may be.
XI.15. Governing Law; Waiver of Jury Trial.
-----------------------------------
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN THOSE
SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE GOVERNED BY
THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED
IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HILLSBOROUGH, STATE
OF FLORIDA, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING, AND THE BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY
AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING.
81
<PAGE>
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN
SECTION 11.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
------------
APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF SHALL PRECLUDE
--------------- ---
THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF
ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE
DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH
ACTION OR PROCEEDING.
[Signatures on following pages]
82
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
made, executed and delivered by their duly authorized officers as of the day and
year first above written.
AMERISTEEL CORPORATION
WITNESS:
/s/ R. Malloy McKeithen By: /s/ George D. Beck
- ------------------------ -------------------
Name: George D. Beck
/s/ Terry L. Witcher Title: Assistant Treasurer
- ------------------------
<PAGE>
BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders
By: /s/ Thomas Blake
-----------------------------
Name: Thomas Blake
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Thomas Blake
-----------------------------
Name: Thomas Blake
Title: Managing Director
Lending Office for Base Rate Loans:
Bank of America, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202
Attention: Agency Services, Tonya Parker
Telephone: (214) 209-2138
Telefacsimile: (214) 209-2515
Wire Transfer Instructions:
Bank of America, N.A.
ABA#111000012
Account No.: 1292000883
Reference: AmeriSteel Corporation
901 Main Street, 14th Floor
Dallas, Texas 75202
Attention: Agency Services, Tonya Parker
Telephone: (214) 209-2138
Telefacsimile: (214) 209-2515
Wire Transfer Instructions:
Bank of America, N.A.
ABA#111000012
Account No.:#1292000883
Reference: AmeriSteel Corporation
Attention: Agency Services, Tonya Parker
<PAGE>
SUNTRUST BANK, TAMPA BAY
By: /s/ W. David Wisdom
--------------------------------
Name: W. David Wisdom
Title: Vice President
Lending Office:
401 E. Jackson Street, 20th Floor
Tampa, Florida 33602
Wire Transfer Instructions:
SunTrust Bank, Tampa Bay
Tampa, Florida
ABA #063106569
Account #MTS 9656004210
Commercial Loan Operations
Reference: AmeriSteel Corporation
<PAGE>
FIRST UNION NATIONAL BANK
By: /s/ Jorge A. Gonzalez
--------------------------------
Name: Jorge A. Gonzalez
Title: Senior Vice President
Lending Office:
301 S. College Street
Charlotte, North Carolina 28288-0737
Wire Transfer Instructions:
First Union National Bank
Charlotte, North Carolina
ABA #__________
Account #__________
Attention: _______________
Reference: AmeriSteel Corporation
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Troy Brown
--------------------------------
Name: Troy Brown
Title: Assistant Vice President
Lending Office:
One PNC Plaza, 3rd Floor
Pittsburgh, Pennsylvania 15222
Wire Transfer Instructions:
PNC Bank, National Association
Pittsburgh, Pennsylvania
ABA #043000096
Account #196030010890
Attention: Commercial Loans
Reference: AmeriSteel Corporation
<PAGE>
AMSOUTH BANK
By: /s/ Ronald L. Ciganek
--------------------------------
Name: Ronald L. Ciganek
Title: Vice President
Lending Office:
100 N. Tampa Street
Tampa, Florida 33602
Wire Transfer Instructions:
AmSouth Bank
Birmingham, Alabama
ABA #062000019
Reference: Commercial Loan - AmeriSteel
Corporation
Upon receipt please call: Annette Franklin
Commercial Banking/Tampa
813-226-1236
<PAGE>
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ Leslie Dunbar
--------------------------------
Name: Leslie Dunbar
Title: Vice President
Lending Office:
420 N. 20th Street
Attn: Florida Corporate Banking (Tampa)
Birmingham, Alabama 35203
Wire Transfer Instructions:
SouthTrust Bank, National Association
Birmingham, Alabama
ABA #062000080
Account #131009
Attention: Joanne Gundling (727-825-2733)
Reference: AmeriSteel Corporation
<PAGE>
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Bruce Hague
--------------------------------
Name: Bruce Hague
Title: Group Senior V.P.
Lending Office:
135 S. LaSalle Street
Chicago, Illinois 60603
Wire Transfer Instructions:
LaSalle Bank National Association
Chicago, Illinois
ABA #071 000 505
Account #1378018
Attention: Commercial Loans
Tiffany Sterling
Reference: AmeriSteel Corporation
<PAGE>
WACHOVIA BANK, N.A.
By: /s/ William R. McCamey
--------------------------------
Name: William R. McCamey
Title: Vice President
Lending Office:
191 Peachtree Street
Atlanta, Georgia 30303
Wire Transfer Instructions:
Wachovia Bank, N.A.
ABA #061-000-010
Account #18-171-498
Attention: Wachovia FW Mony TRF Suspense
Pansy Roberts
Reference: AmeriSteel Corporation
<PAGE>
EXHIBIT A
Applicable Commitment Percentages
<TABLE>
<CAPTION>
Applicable
364 Day Commitment
Lender Commitment Percentage
- ------ -------------- ----------
<S> <C> <C>
Bank of America, N.A. $15,000,000.00
SunTrust Bank, Tampa Bay 11,500,000.00
First Union National Bank 8,500,000.00
PNC Bank, National Association 8,500,000.00
AmSouth Bank 8,500,000.00
SouthTrust Bank, National Association 6,000,000.00
LaSalle Bank National Association 6,000,000.00
Wachovia Bank, N.A. 6,000,000.00
$70,000,000.00 100%
</TABLE>
A-1
<PAGE>
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the 364 Day Credit Agreement dated as of October 20,
1999 (the "Credit Agreement") among AmeriSteel Corporation, a Florida
corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement)
and Bank of America, N.A., as administrative agent for the Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
----------
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT RECOURSE
and without representation or warranty except as expressly set forth herein, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement and the
other Loan Documents as of the date hereof equal to the percentage interest
specified on Schedule 1 of all outstanding rights and obligations under the
----------
Credit Agreement and the other Loan Documents. After giving effect to such sale
and assignment, the Assignee's 364 Day Commitment and the amount of the Loans
owing to the Assignee will be as set forth on Schedule 1.
----------
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Note held by the Assignor and requests that the
Administrative Agent exchange such Note for a new Note payable to the order of
the Assignee in an amount equal to the 364 Day Commitment assumed by the
Assignee pursuant hereto and to the Assignor in an amount equal to the 364 Day
Commitment retained by the Assignor, if any, as specified on Schedule 1.
------------
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 7.1 thereof and such other documents and information as it has deemed
- -----------
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Agreement
as
B-1
<PAGE>
are delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations that by
the terms of the Credit Agreement are required to be performed by it as a
Lender; and (vi) attaches any U.S. Internal Revenue Service or other forms
required under Section 4.6.
-----------
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1.
----------
5. Upon such acceptance and recording by the Administrative Agent, as of
the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent, from
and after the Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement and the Note in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Florida.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telefacsimile
----------
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
----------
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
B-2
<PAGE>
Schedule 1
Percentage interest assigned: ________%
Assignee's Commitment: $_______
Aggregate outstanding principal amount
of Loans assigned: $_______
Principal amount of Note payable to Assignee: $_______
Principal amount of Note payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Administrative Agent): *_______, ____
[NAME OF ASSIGNOR], as Assignor
By:____________________
Title:
Dated:___________, ____
[NAME OF ASSIGNEE], as Assignee
By:____________________
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
B3
<PAGE>
Accepted [and Approved] **
this ___ day of ___________, ____
BANK OF AMERICA, N.A.
By:______________________________
Title:
[Approved this ____ day
of ____________, ____
AMERISTEEL CORPORATION
By:______________________________]**
Title:
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
B4
<PAGE>
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the 364 Day Credit Agreement dated as of
October 20, 1999 (the "Agreement") among AmeriSteel Corporation, a Florida
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Administrative Agent for the Lenders ("Administrative
Agent"). Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
_____________________ ______________________ ________________________
_____________________
_____________________
_____________________ ______________________ ________________________
_____________________ ______________________ ________________________
_____________________
Borrower hereby revokes (effective upon receipt hereof by the Administrative
Agent) the prior appointment of ________________ as an Authorized
Representative.
This the ___ day of __________________, 19__.
AMERISTEEL CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
C-1
<PAGE>
EXHIBIT D
Form of Borrowing Notice
To: Bank of America, N.A.,
as Administrative Agent
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Agency Services, Tonya Parker
Telefacsimile: (214) 209-2515
Reference is hereby made to the 364 Day Credit Agreement dated as of
October 20, 1999 (the "Agreement") among AmeriSteel Corporation (the
"Borrower"), the Lenders (as defined in the Agreement), and Bank of America,
N.A., as Administrative Agent for the Lenders ("Administrative Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice to
the Administrative Agent that Loans of the type and amount set forth below be
made on the date indicated:
Type of Loan Interest Aggregate
(check one) Period/(1)/ Amount/(2)/ Date of Loan/(3)/
--------- ------ ------ ------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
_______________________
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $1,000,000 or if greater an integral multiple of $500,000.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
The Borrower hereby requests that the proceeds of Loans described in this
Borrowing Notice be made available to the Borrower as follows: [insert
--------
transmittal instructions].
- -------------------------
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
D-1
<PAGE>
2. All the representations and warranties set forth in Article VI of the
----------
Agreement and in the Loan Documents (other than those expressly stated to refer
to a particular date) are true and correct as of the date hereof except that the
reference to the financial statements in Section 6.6(a) of the Agreement shall
--------------
be deemed (solely for the purpose of the representation and warranty contained
in such Section 6.6(a) but not for the purpose of any cross reference to such
--------------
Section 6.6(a) or elsewhere is Article 6) to refer to those financial statements
- -------------- ---------
most recently delivered to you pursuant to Section 7.1 of the Agreement (it
-----------
being understood that any financial statements delivered pursuant to Section
-------
7.1(b) have not been certified by independent public accountants) and attached
- ------
hereto are any changes to the Schedules referred to in connection with such
representations and warranties.
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
AMERISTEEL CORPORATION
BY:___________________________________
Authorized Representative
DATE:_________________________________
D-2
<PAGE>
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, N.A.,
as Administrative Agent
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Agency Services, Tonya Parker
Telefacsimile: (214) 209-2515
Reference is hereby made to the 364 Day Credit Agreement dated as of
October 20, 1999 (the "Agreement") among AmeriSteel Corporation (the
"Borrower"), the Lenders (as defined in the Agreement), and Bank of America,
N.A., as Administrative Agent for the Lenders ("Administrative Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice to
the Administrative Agent of the following selection of a type of Loan and
Interest Period:
Type of Loan Interest Aggregate
(check one) Period/(1)/ Amount/(2)/ Date of Loan/(3)/
--------- ------ ------ ------------
Base Rate Loan ______ ________ ____________
Eurodollar Rate Loan ______ ________ ____________
- ------------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $1,000,000 or if greater an integral multiple of $500,000.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
AMERISTEEL CORPORATION
BY:________________________________
Authorized Representative
DATE:______________________________
E-1
<PAGE>
EXHIBIT F
Form of 364 Day Note
Promissory Note
(364 Day Loan)
$______________ Charlotte, North Carolina
October 20, 1999
FOR VALUE RECEIVED, AMERISTEEL CORPORATION, a Florida corporation having
its principal place of business located in Tampa, Florida (the "Borrower"),
hereby promises to pay to the order of ______________________________________
(the "Lender"), in its individual capacity, at the office of BANK OF AMERICA,
N.A., as administrative agent for the Lenders (the "Administrative Agent"),
located at One Independence Center, 101 North Tryon Street, NC1-001-15-04,
Charlotte, North Carolina 28255 (or at such other place or places as the
Administrative Agent may designate in writing) at the times set forth in the 364
Day Credit Agreement dated as of October 20, 1999, as amended or modified from
time to time, among the Borrower, the financial institutions party thereto
(collectively, the "Lenders") and the Administrative Agent (the "Agreement" --
all capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of ___________
DOLLARS ($__________) or, if less than such principal amount, the aggregate
unpaid principal amount of all 364 Day Loans made by the Lender to the Borrower
pursuant to the Agreement, on the 364 Day Termination Date or such earlier date
as may be required pursuant to the terms of the Agreement, and to pay interest
from the date hereof on the unpaid principal amount hereof, in like money, at
said office, on the dates and at the rates provided in Article II of the
----------
Agreement. All or any portion of the principal amount of Loans may be prepaid or
required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest shall bear interest which shall be payable on demand at the rates per
annum set forth in the proviso to Section 2.2(a) of the Agreement. Further, in
--------------
the event of such acceleration, this 364 Day Note shall become immediately due
and payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this 364 Day Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
F-1
<PAGE>
Interest hereunder shall be computed as provided in the Agreement.
This 364 Day Note is one of the 364 Day Notes referred to in the Agreement
and is issued pursuant to and entitled to the benefits and security of the
Agreement to which reference is hereby made for a more complete statement of the
terms and conditions upon which the 364 Day Loans evidenced hereby were or are
made and are to be repaid. This 364 Day Note is subject to certain restrictions
on transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this 364 Day Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
IN WITNESS WHEREOF, the Borrower has caused this 364 Day Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
AMERISTEEL CORPORATION
WITNESS:
___________________ By:_____________________________________
Name:___________________________________
___________________ Title:__________________________________
F-2
<PAGE>
EXHIBIT G
Form of Opinion of Borrowers Counsel
See attached.
G-1
<PAGE>
EXHIBIT H
Compliance Certificate
Bank of America, N.A.,
as Administrative Agent
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Agency Services, Tonya Parker
Telefacsimile: (214) 209-2515
Bank of America, N.A.,
as Agent
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Thomas Blake
Telefacsimile: (214) 209-0980
Reference is hereby made to the 364 Day Credit Agreement dated as of
October 20, 1999, as amended (the "Agreement") among AmeriSteel Corporation,
(the "Borrower"), the Lenders (as defined in the Agreement) and Bank of America,
N.A., as Administrative Agent for the respective meanings therefore set forth in
the Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of _______ (the "Determination Date")
as follows:
I. COMPLIANCE WITH CERTAIN FINANCIAL COVENANTS
-------------------------------------------
Computations showing compliance with Sections 8.1(a), (b), (c), 8.3, 8.5(g)
------------------------- --- ------
and 8.9 are set forth on Schedule I hereto and incorporated herein by this
--- ----------
reference.
II. NO DEFAULT OR EVENT OF DEFAULT
------------------------------
A. Since _____________ (the date of the similar certification), (a)
the Borrower has not defaulted in the keeping, observance,
performance or fulfillment of its obligations pursuant to any of
the Loan Documents; and (b) no Default or Event of Default
specified in Article IX of the Agreement has occurred and is
----------
continuing.
B. If a Default or Event of Default has occurred since
______________ (the date of the last similar certification), the
Borrower proposes to take the following action with respect to
such Default of Event of Default:_____________________.
H-1
<PAGE>
(Note if no Default or Event of Default occurred, insert "Not Applicable").
The Determination Date is the Date of the last required financial statement
submitted to the Lenders in accordance with Section 7.1 of the Agreement.
-----------
IN WITNESS WHEREOF, I have executed this Certificate this ____ day of ____,
____.
By:______________________________
Authorized Representative
Name:____________________________
Title:___________________________
H-2
<PAGE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/99
Schedule 1:
- ----------
Financial Covenant Analyses
(Dollar amounts in thousands) QTR ENDING QTR ENDING QTR ENDING QTR ENDING 4 QUARTERS
9/30/98 12/31/98 3/31/99 6/30/99 ENDING 6/30/99
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
SECTION 8.1(a)
- -----------------------------------------------------------------------------------------------------------------------
CONSOLIDATED EBITDA
CONSOLIDATED NET INCOME X X X X X
NET INCOME (PER FINANCIAL STMNTS) X X X X X
PLUS: AFTER-TAX LOSS ON SALE OF ASSETS X X X X X
LESS: AFTER-TAX GAIN ON SALE OF ASSETS X X X X X
OTHER ADJUSTMENTS X X X X X
----------- ----------- ----------- ---------- --------------
CONSOLIDATED NET INCOME (LOSS) X X X X X
CONSOLIDATED INTEREST EXPENSE X X X X X
TAXES X X X X X
AMORTIZATION X X X X X
DEPRECIATION X X X X X
PLUS: OTHER NON-CASH CHARGES X X X X X
LESS: OTHER NON-CASH CREDITS X X X X X
----------- ----------- ----------- ---------- --------------
CONSOLIDATED EBITDA X X X X X
CONSOLIDATED EBITDA ROLLING 4 QUARTERS X
CONSOLIDATED INDEBTEDNESS X
REVOLVER OUTSTANDINGS X
LETTERS OF CREDIT OUTSTANDING X
IRBs X
SENIOR NOTES DUE 2008 X
SUBORDINATED INTERCOMPANY NOTES X
OTHER INDEBTEDNESS X
X
----------- ----------- ----------- ---------- --------------
CONSOLIDATED INDEBTEDNESS X
RATIO: CONSOLIDATED INDEBTEDNESS/
CONSOLIDATED EBITDA X
COVENANT 3.75
VARIANCE FAVORABLE (UNFAVORABLE) X
COMPLIANCE STATUS ____X___YES _________NO
- ---------------------------------------------------------------------------------------------------------------------
SECTION 8.1 (b)
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
H-3
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/99
Schedule 1:
- ----------
Financial Covenant Analyses
(Dollar amounts in thousands) QTR ENDING QTR ENDING QTR ENDING QTR ENDING 4 QUARTERS
9/30/98 12/31/98 3/31/99 6/30/99 ENDING 6/30/99
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
CONSOLIDATED NET WORTH
COVENANT
$169,499,000 $169,499,000
PLUS: 50% OF CONSOLIDATED NET INCOME X
PLUS: 75% OF NET PROCEEDS OF EQUITY OFFERINGS X
______________
COVENANT X
ACTUAL CONSOLIDATED NET WORTH (PER
FINANCIAL STMTS.) X
VARIANCE FAVORABLE (UNFAVORABLE) X
COMPLIANCE STATUS ___X___ YES ________NO
- ------------------------------------------------------------------------------------------------------------------------------
SECTION 8.1 (c)
- ------------------------------------------------------------------------------------------------------------------------------
CASH INTEREST EXPENSE
INTEREST EXPENSE (SEE FINANCIAL STATEMENTS) X X X X
LESS NON CASH EXPENSE X X X X
CASH INTEREST EXPENSE X X X X X
CASH INTEREST EXPENSE ROLLING FOUR QUARTERS X
RATIO: CONSOLIDATED EBITDA/CASH INTEREST EXPENSE X
COVENANT 2.75
VARIANCE FAVORABLE (UNFAVORABLE) X
COMPLIANCE STATUS __X____YES _______NO
- ------------------------------------------------------------------------------------------------------------------------------
SECTION 8.3
- ------------------------------------------------------------------------------------------------------------------------------
CAPITAL EXPENDITURES
COVENANT
$35,000 $ 35,000
PLUS: ALLOWABLE CARRY-OVER (NOT TO EXCEED
$7,500 IN ANY CASE NOT TO EXCEED $50,000 IN
ANY FISCAL YEAR) X
_______________
X
COVENANT X
ACTUAL CAPITAL EXPENDITURES X
VARIANCE FAVORABLE (UNFAVORABLE)
COMPLIANCE STATUS __X___ YES ________NO
- ------------------------------------------------------------------------------------------------------------------------------
SECTION 8.5(h)
- ------------------------------------------------------------------------------------------------------------------------------
OTHER INDEBTEDNESS
COVENANT
20% OF CONSOLIDATED TANGIBLE ASSETS X
OTHER INDEBTEDNESS X
VARIANCE FAVORABLE (UNFAVORABLE) X
COMPLIANCE STATUS __X____YES _______NO
- ------------------------------------------------------------------------------------------------------------------------------
SECTION 8.9
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
H-4
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/99
Schedule 1:
- ----------
Financial Covenant Analyses
(Dollar amounts in thousands) QTR ENDING QTR ENDING QTR ENDING QTR ENDING 4 QUARTERS
9/30/98 12/31/98 3/31/99 6/30/99 ENDING 6/30/99
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
RESTRICTED PAYMENTS
a) AMOUNT OF CASH DIVIDENDS PAID TO FLS FOR TAX
PURPOSES X
COVENANT $500
COMPLIANCE STATUS __X__ YES ________NO
b) AMOUNT OF CASH DIVIDENDS PAID ON BORROWERS
COMMON STOCK X
COVENANT $5,000
$5,000
PLUS: 50% OF CUMULATIVE CONSOLIDATED NET X
INCOME _______________
X
COVENANT __X____YES _________NO
COMPLIANCE STATUS
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
AmeriSteel Corporation Compliance Certificate
Financial Statement Dated: 6/30/99
Schedule 2:
- ----------
- ----------------------------------------------------------------------------------------------------------------------------------
Tier Leverage Ratio LIBOR + Alternate Base Rate + Unused Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
VI **3.5 2.250% 1.250% 0.500%
- ----------------------------------------------------------------------------------------------------------------------------------
VI **3.0 2.000% 1.000% 0.500%
- ----------------------------------------------------------------------------------------------------------------------------------
IV **2.5 1.750% 0.750% 0.375%
- ----------------------------------------------------------------------------------------------------------------------------------
III **2.0 1.500% 0.500% 0.375%
- ----------------------------------------------------------------------------------------------------------------------------------
II **1.5 1.375% 0.375% 0.250%
- ----------------------------------------------------------------------------------------------------------------------------------
I *1.5 1.250% 0.250% 0.250%
- ----------------------------------------------------------------------------------------------------------------------------------
ACTUAL X X X X
- ----------------------------------------------------------------------------------------------------------------------------------
RATE CHANGE
STATUS (RATE CHANGE) TIER __
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
** Greater than
* Less than
H-5
<PAGE>
EXHIBIT I
Form of Facility Guaranty
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement" or this "Guaranty"),
dated as of __________, ____, is made by THE UNDERSIGNED (the "Guarantor") to
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, as Administrative Agent (the
"Administrative Agent") for each of the lenders (the "Lenders" and collectively
with the Administrative Agent the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
Credit Agreement.
W I T N E S S E T H:
-------------------
WHEREAS, the Secured Parties have provided to AMERISTEEL CORPORATION (the
"Borrower") a 364 Day Facility pursuant to the 364 Day Credit Agreement dated as
of October 20, 1999 among the Borrower, the Administrative Agent, and the
Lenders (as from time to time amended, revised, modified, or supplemented, the
"Credit Agreement"); and
WHEREAS, the Guarantor is a new Subsidiary of the Borrower and is therefore
required to enter into this Guaranty pursuant to Section 7.19 of the Credit
------------
Agreement; and
WHEREAS, as a condition to entering into the Credit Agreement and making
and continuing to make any loans or advances thereunder, the Guarantor is
required to guarantee to the Secured Parties payment of the Borrower's
Obligations in accordance with the terms of this Agreement; and
WHEREAS, the Guarantor will materially benefit from the loans and advances
made under the Credit Agreement, and the Guarantor is willing to enter into this
Guaranty to provide an inducement for the Secured Parties to continue to make
loans and advances under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Guarantor hereby agrees as follows:
1. Guaranty. The Guarantor hereby unconditionally, absolutely,
---------
continually and irrevocably guarantees to the Secured Parties the payment and
performance in full of the Borrower's Liabilities (as defined below). For all
purposes of this Guaranty Agreement, "Borrower's Liabilities" means: (a) the
Borrower's prompt payment in full, when due or declared due and at all such
times, of all Obligations and all other amounts pursuant to the terms of the
Credit Agreement, the Notes, and all other Loan Documents executed in connection
with the Credit Agreement now or at any time or times hereafter owing, arising,
due or payable from the Borrower to the Lenders,
I-1
<PAGE>
including without limitation principal, interest, premium or fee (including, but
not limited to, loan fees and attorneys' fees and expenses); and (b) the
Borrower's prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be performed,
observed or discharged by the Borrower under the Credit Agreement and all other
Loan Documents executed in connection therewith. The Guarantor's obligations to
the Secured Parties under this Guaranty Agreement are hereinafter collectively
referred to as the "Guarantors' Obligations"; provided, however, that the
-------- -------
liability of the Guarantor individually with respect to the Guarantors'
Obligations shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions of
any applicable state law.
The Guarantor agrees that it is directly and primarily liable for the
Borrower's Liabilities.
2. Payment. If the Borrower shall default in payment or performance of
-------
any Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses), or
otherwise, when and as the same shall become due, whether according to the terms
of the Credit Agreement, by acceleration, or otherwise, or upon the occurrence
of any Event of Default under the Credit Agreement that has not been cured or
waived, then the Guarantor will, upon demand thereof by the Administrative Agent
or its successors or assigns AS OF THE DATE OF SUCH DEMAND, fully pay to the
Administrative Agent, for the benefit of the Secured Parties, subject to any
restriction set forth in Section 1 hereof, an amount equal to all of Guarantors'
---------
Obligations then due and owing.
3. Unconditional Obligations. This is a guaranty of payment and not of
-------------------------
collection. The Guarantors' Obligations under this Guaranty Agreement shall be
joint and several, absolute and unconditional irrespective of the validity,
legality or enforceability of the Credit Agreement, the Notes or any other Loan
Document or any other guaranty of the Borrower's Liabilities, and shall not be
affected by any action taken under the Credit Agreement, the Notes or any other
Loan Document, any other guaranty of the Borrower's Liabilities, or any other
agreement between the Secured Parties and the Borrower or any other Person, in
the exercise of any right or power therein conferred, or by any failure or
omission to enforce any right conferred thereby, or by any waiver of any
covenant or condition therein provided, or by any acceleration of the maturity
of any of the Borrower's Liabilities, or by the release or other disposal of any
security for any of the Borrower's Liabilities, or by the dissolution of the
Borrower or the combination or consolidation of the Borrower into or with
another entity or any transfer or disposition of any assets of the Borrower or
by any extension or renewal of the Credit Agreement, any of the Notes or any
other Loan Document, in whole or in part, or by any modification, alteration,
amendment or addition of or to the Credit Agreement, any of the Notes or any
other Loan Document, any other guaranty of the Borrower's Liabilities, or any
other agreement between the Secured Parties and the Borrower or any other
Person, or by any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which may or might in any manner or to any extent
vary the risks of the Guarantor, or might otherwise constitute a legal or
equitable discharge of a surety or a guarantor; it being the purpose and intent
of the parties hereto that this Guaranty Agreement and the Guarantors'
Obligations hereunder shall be absolute
I-2
<PAGE>
and unconditional under any and all circumstances and shall not be discharged
except by payment as herein provided.
4. Currency and Funds of Payment. The Guarantor hereby guarantees that
-----------------------------
the Guarantors' Obligations will be paid in lawful currency of the United States
of America and in immediately available funds, regardless of any law, regulation
or decree now or hereafter in effect that might in any manner affect the
Borrower's Liabilities, or the rights of the Secured Parties with respect
thereto as against the Borrower, or cause or permit to be invoked any alteration
in the time, amount or manner of payment by the Borrower of any or all of the
Borrower's Liabilities.
5. Suits. The Guarantor from time to time shall pay to the Administrative
-----
Agent for the benefit of the Secured Parties, on demand, at the Administrative
Agent's place of business set forth in the Credit Agreement or such other
address as the Administrative Agent shall give notice of to the Guarantor, the
Guarantors' Obligations as they become or are declared due, and in the event
such payment is not made forthwith, the Administrative Agent or the Lenders or
any of them may proceed to suit against any one or more or all of the
Guarantors. At the Administrative Agent's election, one or more and successive
or concurrent suits may be brought hereon by the Administrative Agent against
any one or more or all of the Guarantors, whether or not suit has been commenced
against the Borrower, any other guarantor of the Borrower's Liabilities, or any
other Person and whether or not the Secured Parties have taken or failed to take
any other action to collect all or any portion of the Borrower's Liabilities or
have taken or failed to take any actions against any collateral securing payment
or performance of all or any portion of the Borrower's Liabilities.
6. Set-Off and Waiver. The Guarantor waives any right to assert against
------------------
the Secured Parties as a defense, counterclaim, set-off or cross claim, any
defense (legal or equitable) or other claim which the Guarantor may now or at
any time hereafter have against the Borrower or the Secured Parties without
waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to the Guarantor. If at any time hereafter the Secured Party
employs counsel for advice or other representation to enforce the Guarantors'
Obligations that arise out of an Event of Default, then, in any of the foregoing
events, all of the reasonable attorneys' fees arising from such services and all
expenses, costs and charges in any way or respect arising in connection
therewith or relating thereto shall be paid by the Guarantor to the
Administrative Agent, for the benefit of the Secured Parties, on demand.
7. Waiver; Subrogation.
-------------------
(a) The Guarantor hereby waives notice of the following events or
occurrences: (i) the Administrative Agent's acceptance of this Guaranty
Agreement; (ii) the Lenders' heretofore, now or from time to time hereafter
making Loans and otherwise loaning monies or giving or extending credit to
or for the benefit of the Borrower, whether pursuant to the Credit
Agreement or the Notes or any other Loan Document or any amendments,
modifications, or supplements thereto, or replacements or extensions
thereof; (iii) the Secured Parties or the Borrower heretofore, now or at
any time hereafter, obtaining, amending, substituting for, releasing,
waiving or modifying the Credit Agreement, the Notes
I-3
<PAGE>
or any other Loan Documents; (iv) presentment, demand, default, non-
payment, partial payment and protest; (v) any Secured Party heretofore, now
or at any time hereafter granting to the Borrower (or any other party
liable to the Lenders on account of the Borrower's Liabilities) or to any
certain Guarantor any indulgence or extensions of time of payment of the
Borrower's Liabilities or Guarantors' Obligations, respectively; and (vi)
any Secured Party heretofore, now or at any time hereafter accepting from
the Borrower, any other Guarantor, any other guarantor of the Borrower's
Liabilities or any other Person, any partial payment or payments on account
of the Borrower's Liabilities or any collateral securing the payment
thereof or the Administrative Agent settling, subordinating, compromising,
discharging or releasing the same. The Guarantor agrees that each Secured
Party may heretofore, now or at any time hereafter do any or all of the
foregoing in such manner, upon such terms and at such times as each Secured
Party, in its sole and absolute discretion, deems advisable, without in any
way or respect impairing, affecting, reducing or releasing the Guarantor
from the Guarantors' Obligations, and the Guarantor hereby consents to each
and all of the foregoing events or occurrences.
(b) The Guarantor hereby agrees that payment or performance by the
Guarantor of the Guarantors' Obligations under this Guaranty Agreement may
be enforced by the Administrative Agent on behalf of the Lenders upon
demand by the Administrative Agent to the Guarantor without the
Administrative Agent being required, the Guarantor expressly waiving any
right it may have to require the Administrative Agent, to (i) prosecute
collection or seek to enforce or resort to any remedies against the
Borrower or any other Guarantor or any other guarantor of the Borrower's
Liabilities, or (ii) seek to enforce or resort to any remedies with respect
to any security interests, Liens or encumbrances granted to the
Administrative Agent by the Borrower, any other Guarantor or any other
Person on account of the Borrower's Liabilities or any guaranty thereof, IT
BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY THE GUARANTOR
THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE
AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT,
EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS
CONTINUING UNDER THE CREDIT AGREEMENT. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure or insure any of
the foregoing security interests, Liens or encumbrances on the properties
or interests in properties subject thereto. The Guarantors' Obligations
shall in no way be impaired, affected, reduced, or released by reason of
any Secured Party's failure or delay to do or take any of the acts, actions
or things described in this Guaranty including, without limiting the
generality of the foregoing, those acts, actions and things described in
this Section 7.
---------
(c) The Guarantor further agrees with respect to this Guaranty that
such Guarantor shall have no right of subrogation, reimbursement or
indemnity, nor any right of recourse to security for the Borrowers
Liabilities until the Facility Termination Date.
I-4
<PAGE>
8. Effectiveness; Enforceability. This Guaranty Agreement shall be
-----------------------------
effective as of the date hereof and shall continue in full force and effect
until the Facility Termination Date. This Guaranty Agreement shall be binding
upon and inure to the benefit of the Guarantor, the Administrative Agent and the
Lenders and their respective successors and assigns. Notwithstanding the
foregoing, no Guarantor may, except as provided in the Credit Agreement, without
the prior written consent of the Administrative Agent, assign any rights,
powers, duties or obligations hereunder. Any claim or claims that the Secured
Parties may at any time hereafter have against a Guarantor under this Guaranty
Agreement may be asserted by any Secured Party by written notice directed to the
Guarantor.
9. Representations and Warranties. The Guarantor warrants and represents
------------------------------
to the Administrative Agent for the benefit of the Lenders that it is duly
authorized to execute, deliver and perform this Guaranty Agreement, that this
Guaranty Agreement is legal, valid, binding and enforceable against the
Guarantor in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles; and that the Guarantor's execution, delivery and performance of this
Guaranty Agreement do not violate or constitute a breach of its certificate of
incorporation or other documents of corporate governance or any material
agreement to which the Guarantor is a party, or any applicable laws, orders,
regulations, decrees or awards of any applicable governmental authority or
arbitral body.
10. Expenses. The Guarantor agrees to be liable for the payment of all
--------
reasonable fees and expenses, including attorney's fees, incurred by the
Administrative Agent in connection with the enforcement of this Guaranty
Agreement.
11. Reinstatement. The Guarantor agrees that this Guaranty Agreement
-------------
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Administrative Agent under the Credit Agreement or this
Guaranty Agreement is rescinded or must be restored for any reason or as repaid
in good faith settlement of a pending or threatened avoidance claim.
12. Attorney-in-Fact. The Guarantor hereby appoints the Administrative
----------------
Agent as the Guarantor's attorney-in-fact for the purposes of carrying out the
provisions of this Agreement and taking any action and executing any instrument
which the Administrative Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment is coupled with an interest and is
irrevocable; provided, that the Administrative Agent shall have and may exercise
--------
rights under this power of attorney only upon the occurrence and during the
continuance of an Event of Default.
13. Absolute Rights and Obligations. All rights of the Secured Parties,
-------------------------------
and all obligations of the Guarantor hereunder, shall be absolute and
unconditional irrespective of:
1. any lack of validity or enforceability of the Credit Agreement,
any other Loan Document or any other agreement or instrument relating to
any of the Guarantors' Obligations;
I-5
<PAGE>
2. any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guarantors' Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument
relating to any of the Guarantors' Obligations;
3. any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Guarantors' Obligations; or
4. any other circumstances which might otherwise constitute a defense
available to, or a discharge of, the Guarantor in respect of the
Guarantors' Obligations or of this Agreement.
14. Reliance. The Guarantor represents and warrants to the Administrative
--------
Agent, for the benefit of the Secured Parties, that: (a) the Guarantor has
adequate means to obtain from Borrower, on a continuing basis, information
concerning Borrower and Borrower's financial condition and affairs and has full
and complete access to Borrower's books and records; (b) the Guarantor is not
relying on any Secured Party, its or their employees, agents or other
representatives, to provide such information, now or in the future; (c) the
Guarantor is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty; (d) the Guarantor has relied solely on the Guarantor's own independent
investigation, appraisal and analysis of Borrower and Borrower's financial
condition and affairs in deciding to provide this Guaranty and is fully aware of
the same; and (e) the Guarantor has not depended or relied on any Secured Party,
its or their employees, agents or representatives, for any information
whatsoever concerning Borrower or Borrower's financial condition and affairs or
other matters material to the Guarantor's decision to provide this Guaranty or
for any counseling, guidance, or special consideration or any promise therefor
with respect to such decision. The Guarantor agrees that neither the
Administrative Agent nor any Lender has any duty or responsibility whatsoever,
now or in the future, to provide to the Guarantor any information concerning
Borrower or Borrower's financial condition and affairs, other than as expressly
provided herein, and that, if the Guarantor receives any such information from
the Administrative Agent or any Lender, its or their employees, agents or other
representatives, the Guarantor will independently verify the information and
will not rely on the Administrative Agent or any Lender, its or their employees,
agents or other representatives, with respect to such information.
15. Definitions. All terms used herein shall be defined in accordance
-----------
with the appropriate definitions appearing in the Uniform Commercial Code as in
effect in Florida, and such definitions are hereby incorporated herein by
reference and made a part hereof.
16. Entire Agreement. This Guaranty Agreement, together with the Credit
----------------
Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings, inducements,
commitments or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance or
I-6
<PAGE>
usage of the trade inconsistent with any of the terms hereof. Neither this
Guaranty Agreement nor any portion or provision hereof may be changed, altered,
modified, supplemented, discharged, canceled, terminated, or amended orally or
in any manner other than by an agreement, in writing signed by the parties
hereto.
17. Binding Agreement; Assignment. This Guaranty Agreement, and the
-----------------------------
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective successors and assigns,
except that no Guarantor shall be permitted to assign this Agreement or any
interest herein, except as permitted in the Credit Agreement. All references
herein to the Administrative Agent shall include any successor thereof, each
Lender and any other obligees from time to time of the Guarantors' Obligations.
18. Severability. In case any Lien, security interest or other right of
------------
any Secured Party or any provision hereof shall be held to be invalid, illegal
or unenforceable, such invalidity, illegality or unenforceability shall not
affect any other Lien, security interest or other right granted hereby or
provision hereof.
19. Counterparts. This Guaranty Agreement may be executed in any number
------------
of counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
20. Indemnification. Without limitation of Section 11.9 of the Credit
--------------- ------------
Agreement or any other indemnification provision in any Loan Document, the
Guarantor hereby covenants and agrees to pay, indemnify, and hold the Secured
Parties harmless from and against any and all other reasonable out-of-pocket
liabilities, costs, expenses or disbursements of any kind or nature whatsoever
arising in connection with any claim or litigation by any Person resulting from
the execution, delivery, enforcement, performance and administration of this
Guaranty Agreement or the Loan Documents, or the transactions contemplated
hereby or thereby, or in any respect relating to the Collateral or any
transaction pursuant to which the Guarantor has incurred any Guarantors'
Obligations (all the foregoing, collectively, the "indemnified liabilities");
provided, however, that the Guarantor shall have no obligation hereunder with
- -------- -------
respect to indemnified liabilities directly or primarily arising from the
willful misconduct or gross negligence of the Administrative Agent or any
Lender. The agreements in this subsection shall survive repayment of all
Guarantor's Obligations, termination or expiration of this Guaranty Agreement
and occurrence of the Facility Termination Date.
21. Termination. This Guaranty Agreement and all Guarantors' Obligations
-----------
hereunder shall terminate on the Facility Termination Date.
22. Remedies Cumulative. All remedies hereunder are cumulative and are
-------------------
not exclusive of any other rights and remedies of the Administrative Agent
provided by law or under the Credit Agreement, the other Loan Documents, or
other applicable agreements or instruments. The making of the Loans to the
Borrower pursuant to the Credit Agreement and the extension of the 364 Day
Facility and the Term Loan Facility to the Borrower pursuant to the Credit
Agreement shall be
I-7
<PAGE>
conclusively presumed to have been made or extended, respectively, in reliance
upon the Guarantor's guaranty of the Guarantors' Obligations pursuant to the
terms hereof.
23. Notices. Any notice required or permitted hereunder shall be given,
-------
(a) with respect to the Guarantor, at the address of the Borrower indicated in
Section 11.2 of the Credit Agreement and (b) with respect to the Administrative
- ------------
Agent or a Lender, at the Administrative Agent's address indicated in Section
-------
11.2 of the Credit Agreement. All such notices shall be given and shall be
- ----
effective as provided in Section 11.2 of the Credit Agreement.
-------------
24. Governing Law.
-------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND
DELIVERY OUTSIDE SUCH STATE.
(b) THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS
THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF HILLSBOROUGH STATE OF
FLORIDA, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE NOW OR
HEREAFTER TO THE LAYING OF THE VENUE OR TO THE JURISDICTION OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING.
(c) THE GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) AND IN ACCORDANCE WITH SECTION 11.2 OF THE
------------
CREDIT AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL PRECLUDE
--------------- ---
THE ADMINISTRATIVE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE THE GUARANTOR OR ANY OF THE
GUARANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
I-8
<PAGE>
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THE FOREGOING, THE GUARANTOR HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN SUCH ACTION OR PROCEEDING.
[Signature Page Follows.]
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Guaranty Agreement
on the day and year first written above.
[ [insert name of Guarantor ]
--------------------------------------
WITNESS:
_________________ By:_________________________________________
Name:_______________________________________
_________________ Title:______________________________________
ACCEPTED BY:
ADMINISTRATIVE AGENT:
WITNESS: BANK OF AMERICA, N.A., as Administrative Agent for the
Lenders
_____________________
By:_________________________________________
_____________________ Name:_______________________________________
Title:______________________________________
<PAGE>
Schedule 3.4
------------
Information Regarding Collateral
S-1
<PAGE>
Schedule 6.4
------------
Subsidiaries and Investments in Other Persons
S-2
<PAGE>
Schedule 6.6
------------
Indebtedness
S-3
<PAGE>
Schedule 6.7
------------
Liens
S-4
<PAGE>
Schedule 6.8
------------
Tax Matters
S-5
<PAGE>
Schedule 6.10
-------------
Litigation
S-6
<PAGE>
Schedule 6.18
-------------
Environmental
S-7
<PAGE>
Schedule 7.5
------------
Insurance
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-START> APR-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 6960
<SECURITIES> 0
<RECEIVABLES> 96162
<ALLOWANCES> 0
<INVENTORY> 115,553
<CURRENT-ASSETS> 226,521
<PP&E> 366,026
<DEPRECIATION> 105,371
<TOTAL-ASSETS> 580,065
<CURRENT-LIABILITIES> 93,999
<BONDS> 191,227
0
0
<COMMON> 106
<OTHER-SE> 224,303
<TOTAL-LIABILITY-AND-EQUITY> 580,065
<SALES> 370,170
<TOTAL-REVENUES> 370,170
<CGS> 304,236
<TOTAL-COSTS> 304,236
<OTHER-EXPENSES> (2780)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7541
<INCOME-PRETAX> 32369
<INCOME-TAX> 13789
<INCOME-CONTINUING> 18580
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 18580
<EPS-BASIC> 1.76
<EPS-DILUTED> 1.73
</TABLE>
